[2022] KEHC 103 (KLR)

University of Nairobi v Muaka (Civil Case 132 of 2008) [2022] KEHC 103 (KLR) (Commercial and Tax) (11 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 103 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil Case 132 of 2008

A Mshila, J

February 11, 2022

Between

University of Nairobi

Applicant

and

Leonard Lisanza Muaka

Defendant

Ruling

1. INTRODUCTIONThe Applicant filed a Notice of Motion dated 23rd June 2021 under Order 9 Rule 9(a), Order 45 Rules 1,2,3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act for orders that;a.Spentb.The Court grants leave for Taliti Collins Advocates to come on record for the Applicant herein in place of Ashimosi Shitambasi & Associates Advocates pursuant to Order 9 Rule 9(a) of the Civil Procedure Rules.c.A stay of execution and/or further execution of the judgment of this Court made on 29th May 2020, Decree and all consequential orders issued or made herein in purported execution of the said judgment be granted pending the hearing and determination of this Application.d.The judgment of this court and all other consequential and subsequent decrees, orders, notices and other processes issued or made in purported execution of the said judgment be set aside and reviewed for the court to re-hear the case or make such order in regard to re-hearing as it thinks fit.

2. The Application was supported by the grounds on its face and by the supporting affidavit sworn on even date by LEONARD LISANZA MUAKA.

3. The parties were directed to canvass the application by filing and exchanging written submissions; hereunder is a summary of the parties’ rival submissions.APPLICANT’S CASE

4. The Applicant stated that he received an email from the plaintiff/respondents Advocates on 20th May 2021 stating that a judgment had been entered in May 2020 and that the he needed to pay back Kshs.3, 315,615. 40 plus costs of Kshs.600, 000/-

5. The Applicant averred that he was never served with any notice that he should appear in court; neither had the respondents advocates nor his Advocates informed him of developments in the case; the hearing proceeded ex parte on 10th July 2019 and the Applicant did not have a chance to defend himself due to his Advocate’s mistake of not communicating to him whatsoever.

6. There is no inordinate delay in filing this review Application and the mistake of the counsel ought not to be visited upon the Defendant.

7. The Applicant herein was condemned unheard hence stands to suffer irreparable and substantial loss if the Application is not allowed.

8. The error on the face of the record necessitates this Review Application as the court was not informed by the Applicant’s outgoing Advocates that he was desirous of being heard having showed intention by filing a Defence; and humbly prayed that the application be allowed.RESPONDENT’S CASE

9. In response the respondent/plaintiff submitted that the Applicant failed to attend the hearing despite confirmation by the court that the Applicant had been served with a Hearing Notice through service upon the advocates representing him on record that is ASHIMOSI SHITAMBASI & ASSOCIATES ADVOCATES.

10. The Applicant has not established the grounds for review which warrant an order of review and relied on the following cases: Pancras T. Swai versus Kenya Breweries Limited [2014] eklr, Nyamogo and Nyamogo versus Kogo [2001] EA 174, Francis Njoroge versus Stephen Maina Kamore [2018] eKLR.

11. The judgment was delivered more than one year ago and it would be unjust for the Court to allow the present Application without the applicant providing security for the same.

12. The Respondent further submitted that there had been inordinate delay in filing the Application and no substantive reason had been given by the applicant for the inordinate delay. Case law referred to Tana & Athi Rivers Development Authority versus Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR;

13. The respondent prayed for the applications dismissal as it was merely meant to deny the Respondents its right to enjoy the fruits of the judgment.ISSUES FOR DETERMINATION

14. After reading the Application, the Response and the written submissions filed herein this court has framed the following issues for determination;a.Whether to grant leave to Taliti Collins Advocates to come on record to replace the firm ofAshimosi Shitambasi & Associates Advocates?b.Whether the judgment dated 29/05/2020 should be set aside or reviewed?c.Whether stay of execution of the judgment should issue?ANALYSIS.Whether to grant leave to Taliti Collins Advocates to come on record to replace the firm ofAshimosi Shitambasi & Associates Advocates;

15. The Applicant was until the delivery of judgment represented by the firm ofAshimosi Shitambasi & Associates Advocates. Thereafter, the firm of Taliti Collins Advocates filed the instant application in which the firm seeks to come on record as advocates representing the respondent in place of the firm ofAshimosi Shitambasi & Associates Advocates.

16. The Applicable law is provided for under Order 9 Rule 9 of the Civil Procedure Rule which provides: -“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.upon an application with notice to all the parties; orb.upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

17. The Applicant stated that the outgoing advocates Ashimosi Shitambasi & Associates Advocates were duly served with this application but they failed to file any response. The Applicant attached the Affidavit of Service sworn by Simon Githiomi dated 12th July 2021 to this effect.

18. The former firm of advocates having failed to file any response after having been duly served means that the application is unopposed. In the circumstances leave is granted to the firm of Taliti Collins Advocates to come on record in place of the firm of Ashimosi Shitamsi & Associates Advocates.Whether the judgment dated 29/05/2020 should be set aside or reviewed?

19. An application for review of decree or order is provided for under Order 45 Rule 1 of the Civil Procedure Rules a follows;“1. (1)Any person considering himself aggrieved—

(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

20. Section 80 of the Civil Procedure Act provides that: -“Review:Any person who considers himself aggrieved: -(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the court which passed the decree or made the order and the court may make such order thereon as it thinks fit.”

21. Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist: -(a)There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or(b)There was a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons; and(d)The application must have been made without undue delay.

22. The pertinent issue for determination herein, therefore, is whether the Appellant has established any of the above grounds to warrant an order of review?

23. The first ground provides that there must be discovery of new and important matter which after the exercise of due diligence, was not within the knowledge of the Applicant at the time the decree was passed or the order was made. When reading the order as a whole it would appear to suggest that there must have been existing circumstances, that even after exercising due diligence, was not within his knowledge or could not be produced before the court; and that had these discoveries been brought to the attention of the court before it rendered its decision, then most likely it would have caused the court to arrive at a different decision.

24. Apart from discovering that judgment was entered against him the Applicant herein has not stated that he has made any discovery of new and important material or evidence which after the exercise of due diligence, was not within his knowledge at the time the decree was passed. Case law relied on is the case of Evan Bwire versus Andrew Aginda Civil Appeal No. 147 of 2006 cited in the case of Stephen Githua Kimani versus Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR where the Court of Appeal held as follows:“An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.”

25. Further to the above, the Applicant has not demonstrated that there was a mistake or error apparent on the face of the record that warrants a review of the judgment.

26. This then leads to the last category which is the question as to whether there are other sufficient reasons. The Applicant averred that he was never served with any notice that he should appear in court and neither the respondent/Plaintiff’s advocates nor his Advocates informed him of developments in the case. The hearing proceeded ex parte and the applicant did not have a chance to defend himself due to his Advocate’s mistake of not communicating to him whatsoever and the mistake of the counsel ought not to be visited upon the defendant.

27. There is an Affidavit of Service sworn by Peter O. Adhiambo and dated 27th May 2019 confirming that the Applicant’s Advocate at the time Ashimosi Shitambasi & Associates Advocates was served with the Hearing Notice dated 20th May 2019 which stated that the matter was coming up for hearing on 10th July 2019.

28. It is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court. In Savings and Loans Limited -vs- Susan Wanjiru MurituNairobi (Milimani) HCCS No.397 of 2002Kimaru, Jexpressed himself as follows: -a.“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a Case belongs to a litigant and not to her Advocate. A litigant has a duty to pursue the prosecution of his or her Case. The Court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the litigant on account of such Advocate's failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present Case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff's determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant.

29. The Applicant did not demonstrate to this court any tangible steps he took in following up the matter with his Advocate. It was his case and he ought to have been keen enough to find out the progress of the case and not simply wait until judgment is delivered. It is therefore not enough to simply blame the Advocate for failure to attend the hearing of the Applicant’s own case. Together with the anxiety and prejudice occasioned by the hearing in his absence and determination, the instant case is found to fall outside the ambit of Order 45 and is found not to be a ground to warrant review or variation of the judgment entered on 29/05/2020.

30. Lastly, was the Application brought in a timely manner and without undue delay? The judgment herein was entered on 29th May 2020 and the Applicant filed the present application on 23rd June 2021. This period translates to filing of the application a year after the judgment was delivered. Timeliness in such applications is a crucial factor and the decisions on inordinate delay are legion where a delay of four (4) months has been held to be an inordinate delay. Clearly it cannot be said that the Application was not brought in a timely manner and no explanation has been offered by the Applicant as regards the inordinate delay. The Applicant is found to have failed to provide any strong grounds for review.Whether stay of execution of the judgment should issue;

31. Stay of execution is not an absolute right and a party pursuing this relief must demonstrate to the Court that they merit it. In the case of Butt –versus- Rent Restriction Tribunal [1979] eKLR, it was affirmed that the power to grant or deny stay of execution is discretionary power, to be exercised in favour of a deserving party.

32. The application for stay of execution hinges on the success of the application for review of the judgment. Having failed to prove any of the above mentioned grounds for review it therefore follows that the order sought for stay of execution pending the hearing and determination of the application also fails.FINDINGS AND DETERMINATION

33. From the for-going reasons this court makes the following findings and determinations;(i)The application is found to be partially meritorious only on the ground for leave which is hereby granted to the firm of Taliti Collins Advocates to come on record in place of the firm of Ashimosi Shitambasi & Associates Advocates;(ii)The application for review of the judgment and for stay of execution is found lacking in merit and it is hereby disallowed;(iii)The Applicant shall bear the costs of the application.Orders Accordingly

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 11THDAY OF FEBRUARY, 2022. HON. A. MSHILAJUDGEIn the presence of;Taliti for the Defendant/ApplicantNo appearance for the Plaintiff/RespondentLucy------------------Court Assistant