[2023] KEHC 25176 (KLR)

Waruingi & another (Suing as the Legal Representatives of the Estate of Grace Wanjiku Mbuthia – Deceased) v CIC General Insurance Co. Ltd & another (Civil Appeal 143 of 2021) [2023] KEHC 25176 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25176 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal 143 of 2021

LW Gitari, J

November 2, 2023

Between

Martin Mbuthia Waruingi

1st Appellant

Anrew Waruingi Mbuthia

2nd Appellant

Suing as the Legal Representatives of the Estate of Grace Wanjiku Mbuthia – Deceased

and

CIC General Insurance Co. Ltd

1st Respondent

First Assurance Co. Limited

2nd Respondent

Judgment

1. This is an appeal against the ruling of the lower court delivered on September 29, 2021.

2. A brief background of the matter is that the appellants herein were the successful litigants over the 1st respondent in Meru CMCC No. 309 of 2019. During the proceedings, the 1st respondent filed third party proceedings as against the 2nd respondent (the third party in the suit).

3. At the conclusion of the matter, the trial court ordered the appellant to foot the costs incurred by the third party in the said proceedings. Subsequently, the appellant filed an application dated July 6, 2021 for review of that decision under order 45 rule 1, order 22 and order 23 of the Civil Procedure Rules as well as sections 1A, 1B, and 3A of the Civil Procedure Act. The said application was denied by a Ruling delivered on September 9, 2021 and the appellant was ordered to pay costs.

4. Aggrieved by the decision of the trial court, the Appellant instituted this appeal vide the Memorandum of Appeal dated October 19, 2021 raising the following grounds of appeal:a.That the learned trial magistrate erred in law and fact in denying to review/set aside its orders of June 10, 2021. b.That the learned trial magistrate erred in law and fact by interpreting the provisions of order 45 rule 1 of the Civil Procedure Rules on review.c.That the learned trial magistrate erred by failing to consider that there was need to review the orders condemning the appellant to pay the 2nd respondent’s costs for third party proceedings that they were not privy to them.d.That the learned trial magistrate erred that the mistake of condemning the appellant to pay cost for third party proceedings warranted a review and not an appeal.e.That the honourable court erred by fact and law for falling to peruse the entire record and determine whether a review was necessary.

5. The appellants thus prayed for this appeal to be allowed by setting aside the orders condemning them to pay the 2nd respondent cost for third party proceedings and awarding them the costs of this appeal.

6. The appeal was opposed by the 2nd respondent. The court gave directions that the appeal be canvassed by way of Written Submissions.

The Appellants’ Submissions 7. It is the appellants’ submission that the trial court erred in failing to review the orders it granted on June 10, 2021. That the court had powers under order 45 of the Civil Procedure Rules 2010 to review its orders on conditions set out under the Order. That the said condition included discovery of new and important evidence, mistake or error apparent on the face of the record or for any other sufficient reason. That since the third party proceedings were taken out by the 1st respondent as against the 2nd respondent, and since the appellants was never joined in the third proceedings, then the trial court erred in condemning the appellants to pay costs of the 2nd respondent. The appellants’ further submitted that the trial court erred in refusing the said orders in light of the sufficient reasons tendered. The appellants thus urged this Court to allow the appeal as prayed.Hass Petroleum (K) Limited-v- Iota Engineering and Construction Limited (formerly Total Excavations and Rentals Ltd,) White Lotus Ltd (Intended 3rdParty) 2021 eKLR was cited. The appellant also urged the court to be guided by the decision in Kenya Commercial Bank –v- Suntra Investment Bank Ltd (2015) eKLR. Where the court held that:“In law a 3rd party is enjoined in a suit at the instance of the defendant and through the set procedure under order I rule 15-22 of the Civil Procedure Rules. And liability between the defendant and 3rd party is determined between the defendant and the 3rd party but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the defendant and has given directions cited order 1 rule 22 of the Civil Procedure Rules.”

The 2nd Respondent’s Submissions 8. On its part, the 2nd respondent submitted that the lower court made a conscious decision and was satisfied that since the appellants filed the suit against the 1st respondent seeking payment of the full decretal amount well after part payment by the 2nd respondent and never disclosed such payment, it was dishonest of the appellants to do so and as such they were then liable to pay costs to the 2nd respondent. It was thus the 2nd respondent’s submission that the appellants application for review was misconceived and as such, the learned magistrate did not err in any way and therefore no grounds for interfering with her decision.

Issue for Determination 9. I have carefully considered the Ruling of the trial court, the grounds of appeal and the record of appeal as well as the submissions by the parties. The main issue that arises for determination by this court is whether the trial court erred in refusing to review its orders of June 10, 2021.

Analysis 10. This is a first appeal. It is therefore this court’s duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter. See also CM (a minor suing through them other and next friend M.N.-v-Joseph Mwangangi Maina (2018) eKLR cited by the respondent where the duty of the first appellate court was reiterated.

11. Guided by the said authority, I now turn to the evidence that was presented before the trial court.A brief background of this matter is necessary so as to give a clear picture of what transpired before the trial court. The suit in the lower court was filed by the appellant seeking a declaration that the 1st respondent was statutorily liable to satisfy the decree in Meru Chief Magistrate’s Court Civil Case No 180/2016. The suit was brought under the provisions of section 10(1) of the Insurance Motor Vehicle Third Party Risks) Act. It is important to mention that the appellant had obtained a Judgment against the insureds of the respondents who were ordered to bear liability on a 50:50 basis. The 2nd respondent satisfied its obligation by paying half of the decretal sum before filing the suit against the 1st respondent.In the suit the appellant was claiming the entire decretal sum from the 1st respondent and failed to disclose that the 2nd respondent had already settled its decretal. Due to that material none disclosure, the 1st respondent applied to join the 2nd respondent as a 3rd party in the suit.The appellant then moved the court vide a Notice of Motion dated April 26, 2021 seeking leave to amend the Plaint to capture the apportioned amount in the Judgment delivered on February 14, 2019. The trial magistrate vide a Ruling dated June 10, 2021 held that the appellant was dishonest as it had already received half of the decretal sum at the time the suit was filed, a fact it did not disclose to the court. For the dishonesty, and none disclosure, the trial magistrate ordered the appellant to pay the 3rd Party Costs. The appellant then filed the application dated July 6, 2021 seeking the setting aside/review of the trial magistrate’s Ruling dated June 10, 2021. The application was declined and hence this appeal.

12. It is clear from this background that this appeal has its roots in two rulings. The first Ruling is the one dated June 10, 2021 condemning the applicant herein to pay costs to the 2nd respondent for the third party proceedings and the second Ruling is the one dated September 29, 2021 denying to review/set aside the orders of June 10, 2021.

13. In the Ruling dated June 10, 2021, the court held in part that:“13. The [appellants] filed suit on November 8, 2019 and claimed the whole decretal sum from the [1st respondent]. The [1st respondent] took the third party notice and claimed indemnity from the [2nd respondent]. I have looked at the documents on record and in particular consent dated August 23, 2019 between counsel for the [appellants] and for the [2nd respondent].

14. The terms of the consent were that the [appellants’] claim against the 3rd and 4th defendants be marked as settled. Further counsel on record for the 3rd and 4th defendants attached proof of payment.

15. It is therefore dishonest on the part of the [appellants] to claim that when the suit was instituted they had not received half the decretal sum from the [2nd respondent]. the money was paid in fully and a consent recorded. As at the time of filing the suit this fact was within the knowledge of the [appellants’] counsel. It was the duty of the [appellants’] counsel to disclose this information. They reason as to why this fact were not brought to the attention of this court is best known to the [appellants]. For this reasons the plaintiff is condemned to pay the [2nd respondent’s] costs.”

14. In the Ruling dated June 10, 2021, the appellants herein was the applicants and the court held in part that:“13. Therefore, order 45 of theCivil Procedure Rules, 2010 is very clear that a court can only review its orders if the following grounds exists:- (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.

14. Has the applicant established the above grounds to warrant the court to review its order? I have considered the reasons given by the Applicant for seeking an order of review. The reasons are that this court erred by ordering that they pay cost to the third party. It is further stated that they never sued the third party and as such the court made a wrong decision by ordering to pay costs. It is my considered view that the applicant has not satisfied the requirements for grant of the orders of review. The applicant has not presented any new and important evidence that was not within their knowledge. Further in my considered view, I do not see any error on the face of the record that would warrant this court to review the same. Basically, the applicant is challenging the basis upon which this court arrived at its finding. In my view, what the applicant is asking this court to do, is to sit on its own appeal. As such his application has no merit and this prayer is disallowed.”

Whether the trial court erred in refusing to review its orders of 10th June, 2021. 15. Section 80 of the Civil Procedure Act (Cap 21of the Laws of Kenya) provides as follows: -“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; orb.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.”

16. Order 45 rule 1 of the Civil Procedure Rules, 2010 provides as 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; orb.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.”

17. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLRthe Court of Appeal held that: -“Order 44 rule 1 (now order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial court discretionary power to allow review on the three limps therein stated or “for any sufficient reason….”

18. In the case of Evan Bwire v Andrew Aginda Civil Appeal No. 147 of 2006 cited fin the case of Stephen Githua KimanivNancy Wanjira Waruingit/aProvidence 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.”

19. Similarly, in the persuasive case of Republic v Advocates Disciplinary Tribunalex parteApollo Mboya [2019] eKLR John M. Mativo Judge (as he then was) called out the following principles from a number of authorities: -i.A court can review its decision on either of the grounds enumerated in order 45 rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in order 45 rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in order 45 rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in order 45 rule 1. x.The power of a civil court to review its judgment/decision is traceable in section 80 CPC. The grounds on which review can be sought are enumerated in order 45 rule 1. I am in agreement and I am persuaded by this holding as it has properly interpreted the subject of review.

20. In this case, the trial court made a conscious decision on the matters in controversy and exercised its discretion based on the material on the record in finding that the appellants should pay the 2nd respondent costs for the third party proceedings. The appellant’s take on the ruling being erroneous does not fall under the category of “…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….”As such, the appellants’ grounds of appeal fail.It is also important at this stage to consider the liability of 3rdParty as the impugned ruling arose after the court ordered the appellant to pay the costs of the 3rd party.The legal foundation of issuing a notice and joining a third party is order 1 rule (15) (a) (b) &(c) of the Civil procedure Rules. It provides as follows:-“(a)that he is entitled to contribution or indemnity; or(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or(c)that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the court within fourteen days after the close of pleadings for leave of the court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by Affidavit.”The 3rd party is brought in the suit by the defendant under this rule for the court to determine the issue of liability between the defendant and the 3rd party.The rule envisages a situation where an issue may arise between a 3rd party and the plaintiff with the defendant not centrally involved. Under order 1 rule 15(c), there can be a dispute to be determined between the plaintiff, the 3rd party or between any or either of them. The grant of 3rd Party notice should not be dependent on the privity of contract between the parties involved. The court has to determine the issues between the plaintiff and the intended third party. The court has jurisdiction to issue orders which may be necessary for the ends of justice. Section 3A of the Civil Procedure Act provides:-“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”The court has discretion to settle the issue of costs between the parties. The trial magistrate exercised the discretion to order the appellant to pay costs to the 3rd party judicially as the appellant had made in its plaint a misrepresentation that the entire decretal sum had not been paid. The defendant acted on that misrepresentation and joined the 3rd party. The issue of costs had to be determined between the plaintiff (appellant and the 3rd party as envisaged under order 1 rule 15(c) (supra).

21. Before concluding, I find it prudent to add that having carefully considered the trial court ruling of June 10, 2021, the learned magistrate did not err in condemning the Appellants to pay costs for the third party proceedings.

22. Section 27 of the Civil Procedure Act provides that: -“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”

23. By virtue of section 27 of the Civil Procedure Act, it is trite law that the issue of costs is a discretionary award that is awarded to a successful party. In the case of Party of Independent Candidate of Kenya & another vs Mutula Kilonzo & 2 others (2013) eKLR which cited with approval the words of Murray C J in Levben Products vs Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) at 227 that:“It is clear from authorities that the fundamental principle underling the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion ...But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at....In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so."

24. The 2nd respondent was the successful part in the third party proceedings. While the appellants were not privy to those proceedings, the circumstances of the case prove that the said proceedings would not have been initiated in the first place had the appellants disclosed to the court that the 2nd respondent had already paid half the decretal sum by the time they initiated the suit. As such, it is my view that the trial court was right to condemn the appellants to pay costs to the third party for the trouble taken in prosecuting or defending the case against them in the third party proceedings. The learned trial magistrate cannot be faulted in the manner that he exercised his discretion when awarding costs.

Conclusion 25. The upshot of the foregoing, is that the present appeal lacks merits.Order:1. The appeal is dismissed.2. Costs to the respondents.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 2ND DAY OF NOVEMBER 2023. L.W. GITARIJUDGE