[2023] KEHC 23746 (KLR)

Victoria Pumps Limited & another v Kenya Ports Authority & 4 others (Civil Suit 1 of 2000) [2023] KEHC 23746 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23746 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 1 of 2000

DKN Magare, J

October 18, 2023

Between

Victoria Pumps Limited

1st Plaintiff

Kenya Haulage Agency Limited

2nd Plaintiff

and

Kenya Ports Authority

1st Defendant

Inchape Shipping Services Kenya Limited

2nd Defendant

Ocean Freight (Ea) Limited

3rd Defendant

Mediterranean Shipping Company (Pty) Limited

4th Defendant

Consolidated Marine Service Pvt Limited

5th Defendant

Ruling

1. This is a ruling on an application dated September 28, 2023 and filed by the Plaintiff seeking the following prayers:i.Spent.ii.The Order made on July 20, 2023 be reviewed so that the Plaintiffs are grated the opportunity to call Mr. Francis Kivulli as a witness and also have DW1 and DW2 recalled for cross examination by the Plaintiffs’ Advocate.iii.In the alternative to above, the court do extend the time for the Plaintiffs to file their submissions.

2. The Application is supported by the Affidavit of Gikandi Ngubuini, Advocate. It is materially deponed as follows:i.The court applied order 3 rule 2 of the Civil Procedure Rules and overruled on a technicality that Mr. Francis Kivulli would not testify as he had no witness statement or report being expert witness.ii.The court has a wide discretion to review the said order.iii.The witness statement can be filed if the court so directs and there will be no prejudice to the other parties.iv.Te Plaintiff, in the alternative be granted time to file written submissions in support of the suit.

3. The respondent filed grounds of opposition dated October 4, 2023 in which it was stated inter alia that:a.The application was res judicata as the Court had pronounced itself on the issues subject of the in finality on July 20, 2023. b.The Applicant ought to have lodged an Appeal instead of review.c.Counsel and the witnesses for the applicant acted in contempt of court by walking out on the court during the proceedings.d.The application is an abuse of the court process.

Background 4. At the last hearing the plaintiff’s witness turned up with a witness who did not have any report and was not on any list of witnesses. There was no indication that there was such a witness to testify. There was also nothing to testify on in terms of witness statement or expert report filed. An objection was raised by the defendants regarding the witness. The court enquired whether the witness had any document to testify on. However, he had none. He was just turning up on the morning of hearing, ready take oath.

5. Upon enquiring on the nature of the dealings relating to the case, he had no link to the Plaintiff’s case. The court made a conscious decision that the witness could not proceed as only one was listed and he had already testified.

6. The court recalls with hind sight that the Plaintiff had sought to adjourn the matter to amend the Plaint to reduce the amount claimed. The court noted that the case was 23 years old and something has to give way. The defendant conceded to the amendment orally and the matter proceeded.

7. This particular witness could not testify without his evidence being on record. The court so ordered and thereafter closed the Plaintiff’s case as he was unable to close. After closure, the court watched with horror as the plaintiff’s Mr. Gikandi Ngibuini told the court that he was walking out. Before doing so, he sought stay which was declined. He requested that I record that he was walking out in protest. He came back and I again recorded that he was walking any again.

8. It recorded as I mentally noted the lyrics by Craig David on ‘I am walking away.’“I'm walking away from the troubles in my lifeI'm walking away.”I'm walking away oh to find a better dayI'm walking away from the troubles in my lifeI'm walking away oh to find a better day

9. Despite the walk out the court did not descend into the arena to punish anyone. The case proceeded. As the case was proceeding, the plaintiff’s advocate was hovering around the court.

10. The 1st and 3rd defence witnesses testified. On 25/9/2023 the plaintiff made another application to review my orders.

11. Parties filed submissions. I have considered the submissions in full. If for any reason I did not set the same herein verbatim it is because of economy of space.

12. The applicant submitted that the court’s interpretation of order 3 rule 2 of the Civil Procedure Rules was erroneous. I note that an issue of error of the law should be raised on Appeal. It is not an issue that falls under the jurisdiction of this Court to review its own decisions as anticipated under the law.

13. The applicant submitted that this court ought to apply its overring objective to find in favor of the plaintiff in the application. Reliance was placed on the decision in the case of Hunker Trading Co Ltd vs Elf Oil Kenya Ltd (2010) eKLR that the court should embrace overriding objective over technicalities of procedure.

14. On the part of the 1st and 3rd defendants, it was submitted that the application was an abuse of the court process. Reliance was placed on the case of Muchanga Investments Limited v Safaris Unlimited Africa Ltd(2009) eKLR to assert the point that the aversions in the application were vexatious, frivolous and an abuse of the court process. They submitted that the Plaintiff was in clear contempt of the court when he walked away on the court during the hearing proceedings.

Analysis 15. I have perused the Application and the response thereto. The single issue for my determination is whether the Applicant has met the legal threshold for an Order of review. I note that the Application is filed under the provisions of sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.

16. The Jurisdiction of this Court to grant review is well set out in Section 80 of the Civil Procedure Act, which states that:“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”.Section 63 (e) of the Civil Procedure Act states that:“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed make such other interlocutory orders as may appear to the court to be just and convenient.”

17. Further, section 80 of the Civil Procedure Act is effected in order 45 of the Civil Procedure Rules provides for Review and it states as follows:“(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”.

18. Retired Justice Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994, when dealing with the question of Review, succinctly posited as follows: -“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.”

19. Review is not an appeal. Its jurisdiction is circumscribed. It is not an opportunity to teach the court the law. The court is presumed to know the law. The two aspects given in section 80 of the Civil Procedure Act are real and extrapolation of the law as stated above. For example, an error apparent on the face of the record, you are telling the court that you were right with the factors that were placed before you. However, there is a factor, that is on record, that your researcher did not flag for you. For example, though you have rightly determined liability, there is already a consent filed but hidden in some corner of the dogeared proceedings, which was not flagged.

20. Discovery of new evidence, you are telling the court that the court was correct in determining the case with the evidence they had. However, there has been brought evidence, which was not available to me. After, ransacking through our grandmother’s house after her demise, we found this evidence which only her agemates knew. They were all dead when we testified. Had this evidence been placed in your hands, at the time we were testifying, your wisdom, of which we have no doubt about, will have led you elsewhere.

21. Where however, you are saying that no reasonable court, properly informed about the facts that are on record could have can to the conclusion you reached, it is a different ball game. That becomes the end of wisdom of the high court or trial court howsoever constituted and gives way to wisdom of three wise members of a collegiate Court of Appeal. In the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, court stated as doth: -“10. A clear reading of the above provisions shows that Section 80 gives the power of review while order 45 sets out the rules. The rules restrict the grounds for review. They lay down the jurisdiction and scope of review. They limit review to the following grounds- (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.”

22. I am thus required to determine whether there is an error apparent on the face of the order dated July 20, 2023 that is subject to review in the application. The applicant annexed the order. I have perused it. It stipulates the directions I gave for filing submissions and the date for delivery of Judgement set for the October 24, 2023.

23. From the face of the order, there is nothing to review in the manner stated in the Application. Whereas the Application calls for this court to review the order to grant the plaintiff an opportunity to call a witness by the name Francis Kivulli to testify as expert witness of the plaintiff, the order did not refer to such a witness. In any case the proceedings of 20/7/2023, were made with the same facts now in place. As noted by Fmuchemi J, Omote & another v Ogutu (Civil Appeal E005 of 2021) [2022] KEHC 16441 (KLR) (19 December 2022) (Ruling), the third limb is not a carte blanche for every kind of reasons for review.. the court stated as doth: -“Of sufficient reason: ‘’Any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the civil procedure act: and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous” (Shanzu Investments Limited v Commissioner for Lands (Civil Appeal No 100 of 1993).”

24. In Evan Bwire vs. Andrew Aginda Civil Appeal No. 147 of 2006 cited in the case of Stephen Githua Kimani vs. Nancy Wanjira Waruingi T/A Providence Auctioneers(2016) eKLR, 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. The application seeks to re-open the case. Even if the case is re-opened the person named Francis Kivulli is not a witness. The court made such a decision. If the court was wrong, then it is an error of law. The same could only be appealed to the court of Appeal. The Court of Appeal in Mahinda vs. Kenya Power & Lighting Co. Ltd[2005] 2 KLR 418 expressed itself as follows:“The Court has however, always refused invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made for to depart from this would be a most dangerous course in that it would open the doors to all and sundry to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made.”

26. The only recourse available then, which has now gone with the wind is to Appeal. A reconsideration of the same facts is not allowed. It flouts the doctrine of finality. In the case of Dock Workers Union & 2 others v Attorney General & another Kenya Ports Authority & 4 others (Interested Party) [2019] eKLR, it was therefore held that: -“In this regard, for a Court to review its own orders, it must be demonstrated that there is discovery of new and important matter or evidence. It must also be shown that the new evidence was not within the knowledge of the party seeking review or could not be produced at the time the orders were made. Such party must also satisfy the Court that this was the case even after exercise of due diligence. A Court will also review its orders if it is demonstrated that there is some mistake or error apparent on the face of the record, or for any other sufficient reason. The error must be evident on the face of the record and should not require much labour in explanation. An application for review must also be made without unreasonable delay.”

27. The Code of Civil Procedure, Volume III Pages 3652-3653 by Sir Dinshaw Fardunji Mulla states:“The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers should be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not ground for review. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an Appellate Court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.”

28. The court is both a court of law and equity. It is never the duty of the court to whimsically vary the orders of the court. The prayer that the Plaintiff be allowed to cross examine defence witnesses is summarily rejected. The Plaintiff and his counsel were in court. They were denied an adjournment, they walked away. They did not just walk away, the court was asked to record that the advocate is now walking away and now walking back. This was not only cavalier but actual contempt on the face of the court.

29. The court did not however, get moved and it had more important national business to transact, dispensing justice. We are called to high offices as priests of justice to service the people of Kenya. Anything that derails the same is anathema to progress and good conscience. By walking away from court the Plaintiff and his counsel simply threw away the right to cross examine.

30. I find no good reason to re-open the case. It is not just because the case is 23 years old. It is because there is no witness listed in the plaintiff’s list who is unheard. There is no document unproduced. There was no report which was filed, even without leave in court. The Plaintiff simply wants to delay the case in court for reasons other than the ones they are advancing. In HA v LB [2022] eKLR, justice G V Odunga as he then was, stated as doth: -Whereas under order 45 rule 1, a person aggrieved by a decision whether an appeal is allowed or not but who is not appealing, is at liberty to apply for review of the decision, that provision, in my respectful view, is not a carte blanche for abuse of the process of the Court. In the case of Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 Kimaru, J dealing with the issue of abuse of the process of the Court stated as follows:“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.”

31. Regarding submission, it is not a necessary prayer. They are already field and have not being struck out. The court has perused the entire 36 pages of submissions filed. There is no utility in allowing the prayer.

32. As well submitted by counsel for the 1st and 3rd Defendants, the instant application deserves to feature entirely in book to be titled ‘The History of Abuse of Judicial Process in Kenya’ for being an abuse of the court process. It is indeed an abuse of the court process and I so find.

33. In the circumstances, the application dated 25/9/2023 is bereft of merit and is accordingly dismissed with costs.

Determination 34. The upshot of the foregoing is that I make the following orders: -i.The notice of motion dated September 28, 2023 is devoid of merit and is hereby dismissed with costs of 20,000/= each to the 1st and 3rd Defendantsii.The costs shall be paid within 30 days, in default execution to issue

35. Orders accordingly.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 18TH DAY OF OCTOBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Gikandi for the Plaintiff/ApplicantMiss Osewe for the Defendant/Respondent.Court Assistant - Brian