[2018] KEHC 7815 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

CIVIL APPEAL NO. 1 OF 2016

WOODVENTURE (K) LTD

AUTO SELECTION (K) LTD................................APPELLANTS

-VERSUS-

MOHERAI IRESA MWITA..................................RESPONDENT

RULING

1. This Court delivered the judgment in this appeal on 21/03/2017 where it partly allowed the appeal and affirmed the decision by the trial magistrate declaring that the Appellants were in breach of the Hire Purchase Agreement and the refund of the Kshs. 600,000/= but reversed the order for security costs and interest.

2. Resulting from the judgment of this Court was a partial appeal was filed by the Respondent herein on the issue of the security costs and when the interest was to start running from. The appeal is still pending before the Court of Appeal.

3. About two months from the delivery of the judgment herein the Appellants filed the Notice of Motion dated 02/05/2017 seeking the following orders: -

“1. THAT this application be certified as urgent and the same be heard ex-parte in the 1st instance in respect to prayer 2 below.

2. THAT the intended advertisement for sale bypublic auction of the applicants’Motor Vehicle Chassis Number FE53CEV560731 by M/s IKIMWANYA AUCTIONEERS be stayed pending the hearing and determination of this application intert-partes.

3. THAT the Honourable Court be pleased to review and/or vary its judgment delivered on 21/03/17 and order that Motor Vehicle Chassis Number FE53CEV560731 inthecustody of M/s IKIMWANYA AUCTIONEERS be released to the Applicants.

4. THAT the Respondent to settle the Auctioneer’s Storage Charges in full and any other incidental charges.

5. THAT a date for inter-partes hearing o this application be given.

6. THAT the costs of this application be provided for.”

4. The application was certified as urgent and interim orders in terms of prayer (2) thereof issued. The Respondent filed a Replying Affidavit and Grounds of Opposition. Upon concurrence with the Court and Counsels, written submissions were filed hence this ruling.

5. The Applicants contend that the application is merited as there is an error or omission on the face of the judgment of this Court in that the judgment was silent on the aspect of the release of the motor vehicle. Counsel referred to various decisions on the subject and urged this Court to allow the application.

6. The application was opposed. Counsel for the Respondent contended that the issue allegedly framed as an error or omission was not part of the appeal and as such this Court could not have made any decision on it. He referred to several decisions on the subject as well and urged this Court to dismiss the application.

7. I have carefully considered the application alongside the entire record. The legal basis for the application is Section 80 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya and Order 45 Rule 1(1) of the Civil Procedure Rules. For ease of our discussion I will reproduce Order 45 Rule 1(1) of the Civil Procedure Rulesas under:-

‘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.”

8. From the reading of the law aforestated, an application for review may be based on the following grounds: -

(a) The discovery of new and important matter or evidence which after the exercise of due diligence was not within the Applicant’s knowledge or the Applicant could not produce it at the time the ruling or judgment was rendered.

(b) A mistake or an error so clear on the face of the record.

(c) Any other sufficient reason.

9. As said before, the application herein is hinged on the ground of an error or omission on the face of the record. The error or omission is that the judgment of this Court did not provide for the release of the motor vehicle in issue. In dealing with this application it is imperative I revisit the history of this matter albeit very briefly as the record speaks for itself. The Respondent filed a suit in the High Court at Kisii before it was transferred to this Court and then re-transferred to and heard by the Chief Magistrate’s Court at Migori. Judgment was entered in favour of the Respondent for a declaration that the Appellants had breached the agreement, a refund of the Kshs. 600,000/= with interests, payment of security costs at the rate of Kshs. 5,000/= monthly for the period the vehicle was in the custody of the Respondent, costs and interest.

10. An appeal arising from the judgment of the trial court was heard and determined by this Court where inter alia the order for Kshs. 5,000/= monthly for the period the vehicle was in the custody of the Respondent was set aside. The Respondent has since appealed.

11. There is no dispute that the Respondent was in possession of the vehicle from the time of signing of the agreement. More so, the trial court decreed the Appellants to pay security costs for the period the vehicle was in the custody of the Respondent. It therefore meant that the trial court was satisfied that the Respondent was in possession of the vehicle and had incurred expenses towards the vehicle’s security and storage which expenses were to be remedied. The Appellants were aggrieved by the order and the order was set-aside on appeal. That being so, the position was that the Respondent could not recover the expenses he expended on the storage and security of the vehicle. It is now revealed that for safe custody and to avoid further expenses on his part, the Respondent handed over the custody of the vehicle to an Auctioneer after the delivery of the judgment by the trial court.

12. I have seen the correspondences on the vehicle which were attached as exhibits in the Affidavit of Mitchell J. B. Menezes, the Counsel for the Applicants herein. Exhibit 2 is a letter from the Applicants’ Counsels to the Respondent’s Counsels dated 29/03/2017 informing his counterparts of its compliance with the judgment of this Court on appeal. Exhibit 3 is also a letter from the Applicants’ Counsels to the Respondent’s Counsels dated 29/03/2017 enquiring when the Applicants could collect the vehicle. Exhibit 4 is a letter from Messrs Mudeyi Okumu & Company Advocates dated 03/04/2017 informing the Applicants that when the trial court delivered its judgment on 14/12/2015 the Respondent had decided to and placed the vehicle with an auctioneer for safe custody and that the Applicants were to liaise with the Auctioneer for its release. Exhibit 5 was demand letter by Ikimwanya Auctioneers dated 03/04/2017 on the total sums payable.

13. From the foregone and in view of the record on the security costs of the vehicle, one cannot fail to see that the issue of the custody of the vehicle with the Auctioneer as now raised was not part of the issues for determination in the appeal. That is why none of the parties made submissions on it and the Court could not decide on a non-issue. (See the Supreme Court ruling in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR and the Court of Appeal judgment in Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR).

14. The Respondent however filed a Notice of Appeal against the judgment of this Court challenging inter alia the issue of the security costs. I would have dealt with the issue in consideration of the law but any analysis on the same now will have an impact on the appeal. To avoid such a scenario, I do hereby find that the ideal forum for the determination of the issue on the release of the vehicle would be in the pending appeal. It is for that reason that I decline the application.

15. The Notice of Motion dated 02/05/2017 is hereby dismissed with costs in the appeal.

Orders accordingly.

DELIVERED, DATED and SIGNED at MIGORI this 28th day of February 2018.

A.C. MRIMA

JUDGE

Judgment delivered in open court and in the presence of: -

Mr. Mitchell J. B. Menezes Counsel instructed by the firm of L.G. Menezes & Company Advocates for the Applicants.

Mr. Kerario Marwa Counsel instructed by the firm of Kerario Marwa & Company Advocates for the Respondent.

Miss Nyauke – Court Assistant