[2023] KEHC 23571 (KLR)

Transmara Sugar Company Limited v Mochiemo (Civil Appeal 45 of 2016) [2023] KEHC 23571 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23571 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 45 of 2016

RPV Wendoh, J

October 12, 2023

Between

Transmara Sugar Company Limited

Appellant

and

Pensyl Oigara Mochiemo

Respondent

Ruling

1. Pensyl Oigara Mochiemo (the applicant) filed an application dated 27/7/2022 seeking the following orders: -a.Spent.b.That this court be pleased to review and/or correct apparent errors on the face of its judgment dated 28/6/2022 by not affecting Civil Appeals Nos. 100, 73, 47, 48, 94, 71 and 101. c.Costs be in the cause.

2. The application is premised on the grounds on its face and the affidavit of Mr. Samuel Odingo, Counsel for the applicant. It was deposed that the judgement in this file was read on 28/6/2022 touching on all and/or affecting Civil Appeals Nos. 100, 73, 47, 48, 94, 71 and 101 all of 2016 which appeals were dismissed on 9/4/2018 for not complying with the court orders dated 27/2/2018; that upon filing of an application dated 4/6/2018 by the respondent, the appeals were reinstated by consent on 17/7/2018; that the terms of the consent applied to Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016; that the court adopted the said consent which applied to the stated appeals and marked the appeals as settled.

3. It was further deposed that the said consent was not complied with and the said appeals stand dismissed; that the execution process has stalled for the reasons that the respondent alleges that the said appeals were allowed and the applicant has nothing to execute; that in the instant judgement there be a correction of mistakes, errors and/or omissions on the face of the judgement not to affect the other appeals that were dismissed by Mrima J before this instant one.

4. The application was opposed. The respondent through its Legal Officer Emmanuel Seriani filed a response dated 14/9/2022. It was deposed that the matters in this cause were dismissed on 18/4/2018 but by consent in the appeal, they were reinstated and the orders were to apply to appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 & 101 all of 2016; that the terms of the consent were that parties were to negotiate on the issues but failure to which the court would be allowed to deal with the issues and the matter was fixed for hearing vide the lead file HCCA No. 45 of 2016 and orders were to apply to 46, 47, 48, 71, 72, 73, 99, 100 & 101 all of 2016; that directions were given that it would proceed by way of written submissions and the parties were to highlight the same but they did not do so due to COVID.

5. It was further stated that on 14/9/2021 and 19/10/2021, it was confirmed that the files were moving in a series and the orders in the lead file were to apply to HCCA Nos. 46, 47, 48, 71, 72, 73, 99, 100 & 101 all of 2016. However, when the matter came up for directions on 14/3/2022 Mr. Omwenga from the firm of Odingo & Co. Advocates told the court that all the other files except the lead file have been dismissed. However, that was fundamentally wrong. The matters were running together and the lead file speaks for itself and the other matters were not dismissed as alleged.

6. The court invited the parties to highlight their submissions. Mr. Oyagi for the respondent reiterated the contents of the replying affidavit sworn by Mr. Emmanuel Seriani and the submissions filed on 13/1/2023. Mr. Watama holding brief for Mr. Odingo told the court that Mr. Odingo will not be highlighting his submissions but rely on the supporting affidavit dated 27/7/2022.

7. I have carefully considered the issues arising from the application dated 27/7/2022 and the position taken by each party. The issue for determination is whether there is an apparent error on the face of the record to warrant the review of this court’s judgement dated 28/6/2022.

8. Section 80 of the Civil Procedure Act allows a party who is aggrieved by a judgement to apply to the court for review. Order 45 Rules (1) and (2) of the Civil Procedure Rules gives the grounds on which an applicant should base his application for review as follows: -a.A decree in which no appeal is allowed;b.There is discovery of new and important matter which after exercise of due diligence was not within the applicant’s knowledge;c.There was a mistake or an apparent error on the face of the record;d.There are other sufficient reasons;e.The application must be made without unreasonable delay.

9. The applicant contends that there was an apparent error on the face of the record in relation to the judgement of this court delivered on 28/6/2022 in that the aforementioned judgement applied to Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016 which stood dismissed as of 18/4/2018. The respondent is however of the opinion that Civil Appeal No. 45 of 2016 and the orders therefrom were to apply in Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016.

10. The court record speaks for itself. It is true that on 18/4/2018, this appeal was dismissed for want of compliance with the orders issued on 2/3/2018. The respondent filed another application dated 10/5/2018 seeking reinstatement of the appeals and stay of the intended execution. The application was dismissed on 24/5/2018 for non-attendance. The respondent filed another application dated 4/6/2018 seeking reinstatement of the appeals. On 17/7/2018, Counsel in this matter, Mr. Oyagi and Mr. Odingo recorded consent terms and the conditions thereof for the reinstatement of the appeals. Mr. Odingo confirmed the terms and went on to further tell the court that the orders should apply to Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016. The court confirmed the consent terms as spelt out by the parties as follows: -a.This appeal be and is hereby reinstated;b.The consent of the parties is hereby adopted as a judgement of this appeal;c.This judgement to apply to Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016;d.This appeal is hereby marked as settled and file closed.

11. Therefore, the argument by the applicant that this appeal stood dismissed as of 18/4/2018 is not true. The record indicates that by consent of both Counsel, the appeals were reinstated. Later on, the respondent, filed an application dated 19/10/2018 seeking stay of the intended execution of Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016 since the parties were unable to agree on the applicable statutory deductions as per the consent of 17/7/2018.

12. Directions on the hearing of the application were given on 26/11/2019. The court directed that the application be canvassed by way of written submissions and highlighting of the submissions to be done on 13/2/2020. On 13/2/2020, parties were not ready to proceed and further highlighting was slated for 23/3/2020 but the court did not sit again until 29/6/2020.

13. On 29/6/2020, Mr. Omwenga, Counsel for the applicant asked for time to file a supplementary record of appeal. The court record shows that none of the parties revisited the issue of the pending application dated 19/10/2018. Although there is a consent dated 23/8/2021 which would have compromised the application dated 19/10/2018 to allow the parties dispose of the main appeal, there is no indication that it was adopted as an order of this court.

14. Beginning with the court attendances of 16/3/2021, both Counsel attended court, and led the court to believe that it is the main appeal which was pending disposal and the court rendered its judgement on 28/6/2023. Mr. Odingo Counsel for the applicant either by himself or through his instructing Counsel to hold his brief, never brought to the attention of the court the terms of the consent orders made on 17/7/2018 and/or the pending application dated 19/10/2018.

15. As matters stand, it is the consent orders of 17/7/2018 highlighted above, which subsisted and there was no need for this court to proceed to write a judgement since one of the terms of the consent was to mark this appeal as settled and the file closed. The consent orders of 17/7/2018 effectively disposed of this appeal and all the other appeals which applied to it and since the order was not set aside, the applicant had a right to proceed with the execution. The parties did not come back to court to vary the terms of the consent to allow this court to decide on the issues which they were unable to agree on.

16. This court finds no apparent error on the face of its judgement. It is Counsel of the applicant who infact asked the court that the orders in this appeal apply to Civil Appeals Nos. 46, 47, 48, 71, 72, 73, 99, 100 and 101 all of 2016. Perhaps, the only apparent error is that the court out of sheer oversight, failed to include Civil Appeals Nos. 46 and 99 all of 2016 in paragraph 2 of its judgement as part of the appeals which the judgement should have applied to and erroneously included Civil Appeal No. 94 of 2016 which was not part of the appeal numbers in this series.

17. This court notes with dismay the conduct of the applicant’s Counsel. Counsel knew of the terms of the consent orders but proceeded to oppose the appeal vigorously. The applicant’s Counsel is to be blamed for the misfortunes which have befallen his clients and the blame cannot be shifted to the court in the name of there being an apparent error on the face of the record.

18. In my view, the application dated 27/7/2022 is unmerited and it is hereby dismissed with costs to the respondent.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF OCTOBER 2023R. WENDOHJUDGERuling delivered in the presence of;Mr. Watama for the Applicant.Mr. Wekhomba Aim for the Respondent.Emma & Phelix Court Assistants.