[2022] KEHC 14269 (KLR)

Tyl Limited v Freight Express Limited (Civil Appeal 188 of 2019) [2022] KEHC 14269 (KLR) (20 September 2022) (Ruling)

Neutral citation: [2022] KEHC 14269 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 188 of 2019

OA Sewe, J

September 20, 2022

Between

Tyl Limited

Appellant

and

Freight Express Limited

Respondent

(Being an appeal from the Judgment and Decree of Hon. J. Nyariki, RM, delivered on 20th August 2019 in Mombasa CMCC No. 1036 of 2013)

Ruling

[1]This is an interlocutory appeal from the ruling and order of Hon Nyariki, RM, delivered on August 20, 2019 in Mombasa Civil Case No 1036 of 2013. The brief background to the appeal is that the respondent, being in the business of clearing and forwarding of shipments, was engaged by the appellant to clear a shipment from China consisting of loose furniture and fittings. The respondent contended before the lower court that it duly undertook the assignment and raised several invoices to the tune of Kshs 1,422,631. 60 which the appellant failed or refused to settle. Accordingly, the respondent filed the lower court suit seeking judgment for the aforesaid sum together with interest and costs of the suit. He also prayed for damages for breach of contract and any other relief that the Court may deem fit to grant.

[2]The appellant denied the respondent’s allegations vide its Defence dated September 5, 2018. It denied that it owes the respondent Kshs 1,422,631. 60 as alleged as there was no contract between the parties in the first place. Accordingly, the appellant prayed that the lower court suit be dismissed with costs. The suit thereafter proceeded ex parte before Hon Ndegwa, SPM, who delivered his judgment on March 21, 2019. He found in favour of the respondent and gave orders in terms of the respondent’s prayers (a), (b), (c) and (d) of the Amended Plaint. The prayer for damages was disallowed.

[3]The appellant promptly filed a Notice of Change of Advocates on March 27, 2019 along with a Notice of Motion dated March 26, 2019 seeking the following orders, among others:(a)That the judgment delivered on March 21, 2019 be set aside together with all consequential orders;(b)That there be a stay of execution of the decree herein and the warrants of attachment issued subsequent thereto;(c)That the plaintiff’s case be reopened to allow the defendant cross-examine the plaintiff’s witnesses;(d)That leave be granted to the defendant to file witness statements within 14 days or such time as the Court may direct; and(e)That costs be in the cause.

[4]The application was premised on the grounds that the hearing was mis-diarised as March 22, 2019 instead of March 21, 2019; and that the defendant had taken swift action to arrest the situation by changing his previous advocates over the mistake that occasioned the ex-parte judgment. As that application was filed under a Certificate of Urgency, it was placed before Hon Nyariki, RM, as the duty magistrate on March 28, 2019. The learned magistrate thereupon issued the following orders:(a)That the application be and is hereby certified as urgent and is heard ex parte in the first instance;(b)That the judgment delivered on March 21, 2019 be and is hereby set aside together with all consequential orders;(c)That the matter be placed before the trial court on a date to be fixed at the registry on priority basis.

[5]The aforestated orders triggered the filing of the Notice of Motion dated May 16, 2019 by the respondent for review of the said orders. They contended the application dated March 26, 2019 was filed by a busybody as the Notice of Change of Advocates was not given with the leave of the lower court or by consent. The respondent also complained that a final order was given ex parte by Hon Nyariki without according it a hearing; and in respect of a matter that Hon Ndegwa, SPM, a magistrate serving in the same station, was already seized of. Hence, it was the respondent’s contention that there were glaring mistakes and errors apparent on the face of the court record that warranted a review and setting aside of the orders of Hon Nyariki.

[6]In addition to its response to the application aforementioned, the appellant filed a Notice of Preliminary Objection dated August 16, 2019 seeking the striking out of the respondent’s suit on the following grounds:(a)That the lower court lacked the jurisdiction to entertain the suit as it was functus officio upon entering the ex-parte judgment of March 21, 2019 on the respondent’s request;(b)That the Amended Plaint was filed in breach of Order 8 Rule 3 of the Civil Procedure Rules as it was amended after the ex-parte judgment was entered against the appellant; and is therefore an abuse of the process of the court.

[7]The record of the lower court further shows that Hon Ndegwa forwarded the file to Hon Nyariki on August 20, 2019 with a view of the latter reconsidering his orders of March 28, 2019; and upon doing so, Hon. Nyariki issued the following order:'I have gone through the orders I granted on March 26, 2019 with regard to the Notice of Motion application dated March 26, 2019. With reference to section 99 of the Civil Procedure Act 2010 I hereby reverse the orders made and return the file before the trial court for directions.'

[8]The file was then returned to Hon Ndegwa who then presumed that Hon Nyariki’s order had disposed of all pending applications. He consequently marked the suit 'stood over generally' and caused the file to be returned to the registry. Being dissatisfied with that state of affairs, the appellant filed its Memorandum of Appeal on September 18, 2019 contending that:(a)The learned magistrate, Hon Nyariki, erred in law and in fact by failing to address all the main issues raised in the applications dated March 26, 2019 and May 16, 2019, and particularly whether the Hon Magistrate could lawfully review a judgment he did not deliver;(b)The learned magistrate, Hon Nyariki, erred in law and in fact by dismissing the application dated March 26, 2019 for review of the judgment delivered on March 21, 2019 by Hon Ndegwa; and(c)The learned magistrate Hon Nyariki erred in law and in fact by dismissing the Preliminary Objection dated August 16, 2019 which was pending before Hon Ndegwa.

[9]In the premises, the appellant prayed that the appeal be allowed with costs; that the ruling delivered on August 20, 2019 and the order emanating therefrom be set aside; and that the application dated March 26, 2019 be placed before Hon Ndegwa for hearing and determination. In the alternative, the appellant prayed that the application dated March 26, 2019 be determined by this Court.

[10]The appeal was canvassed by way of written submissions, pursuant to the directions issued on September 27, 2021. Consequently, the appellant’s written submissions were filed on October 25, 2021 in which learned counsel, Mr Orwenjo, proposed the following issues for determination:(a)Whether Hon Nyariki could lawfully review a judgment he did not deliver and dismiss the appellant’s review application;(b)Whether Hon Nyariki erred in law and fact by dismissing the appellant’s Preliminary Objection dated August 16, 2019 challenging the jurisdiction of the trial court which was pending before the trial magistrate, Hon Ndegwa;(c)Whether Hon Nyariki’s orders resulted in an illegal decree from the judgment of March 21, 2019.

[11]Counsel relied on Section 80 of the Civil Procedure Act in urging the Court to find that a review can only be done by the court which passed the decree or made the order. For that reason, the appellant was of the posturing that the judgment of March 21, 2019 could only be reviewed by Hon Ndegwa; and therefore Hon Nyariki had no power to dismiss the appellant’s application for review dated March 26, 2019. Mr Orwenjo further submitted that after passing judgment the lower court was funtus officio and could not revisit the ex-parte judgment by way of the orders of August 20, 2019. He relied on Raila Odinga & Others v IEBC & Others [2013] eKLR and Jersey Evening Post Limited v Al Thani [2002] JLR 542 to buttress his arguments.

[12]Lastly, it was the submission of Mr Orwenjo that the order given by Hon Nyariki on August 20, 2019 was illegal in so far as it failed to correct the anomaly on record in which the lower court ended up issuing a decree for Kshs 33,000,000/=, a sum well in excess of its pecuniary jurisdiction of Kshs 20,000,000/=. Counsel relied on Section 7 of the Magistrates’ Courts Act, No 26 of 2015 and the case ofOwners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1 on the question of jurisdiction and urged the Court to allow the appeal as prayed.

[13]On behalf of the respondent, Ms Muyaa opposed the appeal. She relied on her written submissions dated January 12, 2022. She submitted that there is no competent appeal; granted that the appellant did not comply with mandatory requirements governing the filing appeals; such as seeking leave to file a Supplementary Record of Appeal and a Certificate of Delay. Counsel further submitted that the appellant was mistaken as to the effect of the orders prayed for in that whereas the appeal was against the orders of Hon Nyariki dated August 20, 2019, the wording of the 4th ground of appeal was in respect of 'the decree emanating from the judgment of March 21, 2019. ' For those reasons, Ms Muyaa urged for the striking out of the appeal on the ground that it is incompetent. She relied on Gregory Kiema Kyuma v Marietta Syokau Kiema [1988] eKLR in support of her submissions.

[14]In addition to the foregoing, Ms Muyaa submitted that the Notice of Change of Advocate was filed without the leave of the lower court; and therefore the application dated March 26, 2019 was itself incompetent, having been filed by a stranger to the suit after judgment. Counsel relied on Order 9 Rule 9 of the Civil Procedure Rules to underscore this argument. She added that the consent filed before the lower court on June 6, 2019 seeking to validate the defective Notice of Change of Advocate could not operate retrospectively to cure the defect. Counsel further argued that, by reversing his orders of March 28, 2019, Hon Nyariki, in effect, rejected the consent and allowed the respondent’s application dated May 16, 2019, including the prayer that the Notice of Change of Advocates filed by M/s Khalid Salim & Company Advocates be expunged from the court record.

[15]On the merits of the appeal, Ms Muyaa urged the Court to note that, by the order dated August 20, 2019 Hon Nyariki simply reversed the erroneous final orders made ex parte by him on March 28, 2019; with the effect that the matter reverted to its post-judgment state. According to Ms Muyaa, the appellant cannot be heard to argue that Hon Nyariki set aside orders he made on March 28, 2019 without stating the status of the application dated March 26, 2019.

[16]On jurisdiction, Ms Muyaa again made reference to Section 7(1) of the Magistrates Courts Act and urged the Court to find that Hon Ndegwa had the pecuniary jurisdiction to entertain the suit. She relied on Bio Medical Laboratories (K) Limited v Attorney General [2014] eKLR and Patmose Technical Services (K) Limited v Rural Electrification Authority [2018] eKLRto support the argument that, even where commercial interest is sought and awarded, the relevant value for purposes of ascertaining the value of the subject matter is the principal award, net of interest. She therefore urged for the rejection of the appellant’s argument that, because interest accrued on the principal sum over time owing to the appellant’s refusal to pay the debt, the lower court lacked the pecuniary jurisdiction to entertain the suit. Thus, counsel urged the Court to dismiss the appeal with costs.

[17]This being a first appeal, it is the duty of this Court to re-evaluate the evidence placed before the lower court and make its own conclusions thereon. (see Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123). I must also remind myself that this is an interlocutory appeal; and therefore that it is not in the interest of justice for the Court to make any dispositive findings on the issues in contest before the lower court. This point was aptly made in Uhuru Highway Development Ltd v Central Bank of Kenya & Another [1995] eKLR as follows:One must be careful as far as possible in dealing with this appeal, not to pronounce on the dispute between the parties on its merits. After all, the suit is still pending in the High Court and to express concluded views on the merits of the dispute in this interlocutory appeal, would hamstring a decision on them by the High Court.'

[18]With the foregoing principles in mind, I have perused and considered the appeal; which is confined to the order of Hon Nyariki dated 20th August by which he reversed the ex-parte orders he made on March 28, 2019. The impugned order reads:'I have gone through the orders I granted on March 26, 2019 with regard to the Notice of Motion application dated March 26, 2019. With reference to section 99 of the Civil Procedure Act 2010 I hereby reverse the orders made and return the file before the trial court for directions.'

[19]It is manifest therefore that the learned magistrate made the above order upon the realization that there was an error on the face of the record in connection with his ex-parte orders of March 28, 2019 in respect of which he invoked the Slip Rule. Thus, the issue arising for determination for purposes of this appeal is not whether Hon. Nyariki could lawfully review a judgment he did not deliver and dismiss the appellant’s review application as proposed by Mr Orwenjo but whether that mistake was one that could be corrected under the Slip Rule. It is also manifest that in making the impugned order, Hon Nyariki did not explicitly pronounce himself on the pending applications or the preliminary objection filed by the appellant on August 16, 2019. It is therefore not correct for the appellant to assert that Hon Nyariki erred in law and fact by dismissing the appellant’s Preliminary Objection dated August 16, 2019 challenging the jurisdiction of the trial court which was pending before the trial magistrate, Hon Ndegwa. Moreover, having reversed his ex-parte orders of March 28, 2019, it was upon Hon Ndegwa to hear the parties for a merit consideration and determination of, not only the pending applications, but also the preliminary objection. Therefore, it cannot be validly argued that Hon Nyariki’s orders resulted in an illegal decree from the judgment of March 21, 2019.

[20]Section 99 of the Civil Procedure Act provides that:'Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.'(Emphasis added)(21)This is why in the case of Vallabhdas Karsandas Raniga vs Mansukhalal Jivraj & others (1965) EA 700, the East African Court of Appeal held that:'A slip order will only be made where the court is fully satisfied that it is giving effect to the intentions of the court at the time when the judgment was given, or in the case of a matter which was overlooked, where it is satisfied beyond doubt, as to the order which it would have made had the matter been brought to its attention.'

[22]Similarly, inLakhamshi Brothers Ltd v R Raja & Sons [1966] EA 313, Sir Charles Newbold, P, stated the applicable approach as follows:'Indeed there has been a multitude of decisions by this Court, on what is known generally as the slip rule, in which the inherent jurisdiction of the court to recall a judgment in order to give effect to its manifest intention has been held to exist. The circumstances however, of the exercise of any such jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to judgment to give effect to the intention of the court when it gave its judgment or to give effect to what clearly would have been the intention of the court had the matter not inadvertently been omitted.'

[23]In the premises, it is pertinent to ascertain the intention of the lower court (Hon Nyariki) when it made the order dated March 28, 2019. As has been stated herein above in paragraph 3, the Notice of Motion dated March 26, 2019 sought the following orders from the lower court:(a)That this application be certified as urgent and heard ex-parte in the first instance;(b)That the judgment delivered on March 21, 2019 be set aside together with all consequential orders;(c)That there be a stay of execution of the decree herein and the warrants of attachment issued subsequent thereto;(d)That the plaintiff’s case be reopened to allow the defendant cross-examine the plaintiff’s witnesses;(e)That leave be granted to the defendant to file witness statements within 14 days or such time as the Court may direct; and(f)That costs be in the cause.

[24]Clearly therefore, by granting 'temporary orders' and issuing directions that 'the matter be placed before the trial court on a date to be fixed at the registry on a priority basis' it is manifest that Hon Nyariki had no intention of fully disposing of the application on an ex-parte basis; and therefore that reference to prayer 2 as opposed to prayer 3 was an accidental slip or omission. That being the case, a correction thereof under Section 99 of the Civil Procedure Act was well within the jurisdiction of the lower court and cannot therefore be faulted. That conclusion sufficiently disposes of the interlocutory appeal, in my view, as the rest of the matters in contest can be urged before the trial court.

[25]In the result, the orders that commend themselves to me, and which I hereby grant, are as hereunder:(a)That the appeal be and is hereby dismissed with no order as to costs.(b)The consequential order by Hon Ndegwa dated August 20, 2019 declaring that the applications dated March 26, 2019 and May 16, 2019 as well as the preliminary objection dated were spent be and is hereby set aside.(c)The two applications dated March 26, 2019 and May 16, 2019 as well as the preliminary objection dated August 16, 2019 be set down for hearing forthwith by the lower court for a determination on the merits.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 20TH SEPTEMBER, 2022. OLGA SEWEJUDGE