[2006] KEHC 1404 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 293 of 2004

WORLD WIDE FUND FOR NATURE(EASTERN AFRICA REGIONAL OFFICE)…… PLAINTIFF

VERSUS

FIONA MOTORS LTD. …………………………...................................................………. DEFENDANT

R U L I N G

This is an application expressed to have been made under the provisions of Order XLIV Rules 1 and 2 of the Civil Procedure Rules; Sections 34 and 80 of the Civil Procedure Act and all other enabling provisions of the law. The application which is by the plaintiff seeks the following order apart from costs:-

(i) That this court be pleased to review the consequential orderherein to provide that the handing over of the documents ofthe three (3) motor vehicles do constitute delivery of themotor vehicles.

The primary grounds for the application are as follows:-

1. That there is an error apparent on the face of the record inthat the court erroneously ordered the plaintiff/applicantto hand over the three (3) suit motor vehicles to thedefendant/respondent whereas the plaintiff/applicant hadin its possession only one (1) of the suit motor vehicles.

2. That during trial PW1 and PW3 had testified that theplaintiff had in its possession only one (1) of the suitmotor vehicles; the other two (2) suit motor vehicles havingbeen in the custody of the Customs and Excise Departmentof the Kenya Revenue Authority.

3. That the plaintiff/applicant attempted to physically deliverthe one (1) suit motor vehicle in its possession to thedefendant/respondent together with the documents for theother two (2) motor vehicles but the defendant/respondentrefused to take delivery of the same stating that she wantedall the three (3) motor vehicles delivered to her.

4. That after the futile attempt by the plaintiff/applicant todeliver to the defendant/respondent the one (1) suitmotor vehicle in its possession the said motor vehicle wassubsequently impounded by the Customs and ExciseDepartment of the Kenya Revenue Authority.

5. That the consequential order made by the courtrequiring that the plaintiff/applicant do hand overthe three (3) suit motor vehicles to the defendant/respondent can never be actualized because theplaintiff/applicant is not in possession of and cannotin future have possession of the three (3) suit motorvehicles because they have all been impounded by theCustoms and Excise Department of the Kenya RevenueAuthority.

6. That there exists sufficient reason to review the judgmentand decree herein as the facts pertaining now are radicallydifferent from those at the time of the trial and judgment.

The application is supported by an affidavit of one George Atisa, the Administration and Operations Manager of the plaintiff/applicant. Annexed to this affidavit are several annextures which include a copy of the decree and correspondence exchanged. The application is opposed and there is a replying affidavit sworn by one Silvya Wanjiru Merie, the defendant’s Managing Director.

After hearing arguments from Mr. Otiso, learned counsel for the plaintiff and Mr. Chege, learned counsel for the defendant, I reserved my ruling. The substance of the plaintiff’s complaints can be considered under two main heads. The 1st and primary head is that there is an error apparent on the face of the record and the second and in my view secondary head is that there exists sufficient cause to review the judgment and decree herein.

Regarding the complaint that there is an error apparent on the face of the record the plaintiff’s contention is that the order to hand over the three (3) suit motor vehicles was made in error because only one motor vehicle was in the possession of the plaintiff, the other two having been in the custody of the Customs and Excise Department of the Kenya Revenue Authority. The plaintiff’s further contention is that even the one motor vehicle that was in its possession at the time of trial and judgment has since been impounded by the same department of Customs and Excise. The plaintiff had attempted to physically deliver this latter motor vehicle to the defendant before it was impounded but the defendant had refused to take delivery of the same insisting that all the three (3) motor vehicles be delivered together. As a consequence of the actions of the department of Customs and Excise, the order requiring the plaintiff to hand over to the defendant the three (3) motor vehicles can now not be complied with.

I have read my judgment again and I confess I have not been able to detect the error complained about. I found, as proved on a balance of probabilities that the subject motor vehicles were cleared by the plaintiff and were received by the plaintiff. The plaintiff’s primary concern was that the delivered motor vehicles did not meet their specifications. The plaintiff was further concerned about delayed delivery. Possession of the subject motor vehicles was not really in serious contention. The plaintiff not only took delivery of the motor vehicles but its officers indeed had the motor vehicles valued. The plaintiff’s evidence was unequivocal that the defendant refused to take back the vehicles when requested to do so. In the premises, I have no doubt in my mind that there is no error apparent on the face of the record.

Has the plaintiff shown some other sufficient reason for review of the said judgment and decree? The plaintiff contends that there now exist facts that are radically different from those obtaining at the time of trial and judgment and for that reason review of the judgment and decree should be ordered. If I understand the plaintiff correctly, the radical difference now is that the subject motor vehicles are now in the possession of the Department of Customs and Excise of the Kenya Revenue Authority. I am unable to appreciate this argument. How can the impounding of the motor vehicles by the Department of Customs and Excise amount to other sufficient cause to review a judgment and decree based on entirely different circumstances? Whatever complaints the plaintiff may have against the impounding of the subject motor vehicles, the complaints cannot certainly be resolved in a review application. In my view, unfavourable consequences of a judgment decree or order would not normally constitute sufficient cause for review.

On the whole, I find and hold that the applicant/plaintiff has not established any of the conditions set out in Order XLIV Rule (1) of the Civil Procedure Rules for the grant of a review of the judgment and decree herein. The application has no merit and is dismissed with costs.

It is so ordered.

DATEDand DELIVERED at NAIROBI this 19TH day of SEPTEMBER, 2006.

F. AZANGALALA

JUDGE

19. 9.2006

Read in the presence of:-