1. On 22/11/2024, this court granted the applicant’s notice of motion dated 26/8/2024 seeking extension of time to file appeal and stay of execution in the following terms:
a. The applicant is granted leave to file appeal out of time and to do so within the next 14 days.
b. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCCC No. 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into court the balance of the decretal sum within 21 days from today, the first half having been deposited at the ex parte stage.
c. Failure by the applicant to abide by the conditions hereinabove the application dated 26/8/2024 will be deemed to have been dismissed and the respondents will be at liberty to execute.
d. Costs of the application will abide by the Appeal.
2. The applicant, Associated Motors Ltd has come back to court in a notice of motion dated 5/12/2024 seeking the following orders for this court to:
a. review, vary and or set aside its ruling/order delivered on 22nd November 2024, directing the applicant to pay the balance of the decretal sum in court.
b. review, vary and or set aside the decision/order requesting the defendant (sic) to file its appeal again within 14 days.
c. extend the order of stay of execution issued on 28th August 2024 pending the hearing and determination of this application.
3. The court did not certify the matter as urgent and did not issue the prayer for extension of the order of stay issued on 28/8/2024 at the ex parte stage.
4. The present application for review is premised on the ground that there is an apparent mistake or error on the face of the record for various reasons. First, that the court had already admitted the applicant’s appeal in its directions issued on 28/8/2024 and therefore its order of 22/11/2024 directing that “the applicant is granted leave to file appeal out of time and to do so within the next 14 days,” was in error as it amounts to the applicant being required to file the appeal twice. Secondly, that at the ex parte stage, the court having ordered the applicant to deposit half of the decretal sum amounting to KShs 978,075/=in court which the applicant did, it was an error or mistake for this court in the ruling dated 22/11/2024 to find that the applicant had not furnished any security and direct the applicant to deposit the other half in court. Thirdly, that the court also erred in directing the applicant to deposit the entire decretal sum in court when the judgment delivered by the trial court was against the applicant, the 2nd, 3rd and 4th respondents herein and that it is only fair and in the interest of justice that the other half be borne by the 2nd, 3rd and 4th respondents. That, the applicant does not have the means to raise the other half considering it had already furnished security at the ex-parte stage and its finances are stretched. That the 3rd and 4th respondents have also filed an appeal in Mombasa, being Civil Appeal No. E250 of 2024 over the same case, as well as filed an application for stay of execution in the same case and it is only fair that they shoulder the other half of the decretal amount and in any case, they have not been condemned to deposit any security. Finally, that the decretal amount is KShs. 1,956,150 and not KShs. 2,500,000 as held by this court in its ruling under review.
5. The application is brought under Order 45 Rule 1 and Order 51, of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
6. The application is supported by the affidavit of Rebecca Kivinda, human resource manager sworn on 4/12/2024 largely in terms set out above as per the grounds in support.
7. The application is opposed by the 1st respondent through Mwaita Hamisi Mbeta’s replying affidavit sworn on 14/12/2024. He deposes that the application is without merit as there is no error or mistake apparent on the face of the record to warrant a review and that the court is functus officio.
8. He deposes further that contrary to what the applicant deposes in its supporting affidavit, the court granted leave to the applicant to lodge an appeal out of time at the ex parte stage subject to a rider that this issue had to be considered by the court at the inter partes stage. The court therefore, correctly considered the issue in its ruling after hearing the parties and gave directions based on the evidence before the court. That the court in its ruling further exercised its discretion and confirmed that the applicant had already deposited half the money and further ordered the applicant to deposit the balance of the decretal sum in court within 21 days from the 22/11/2024 failure to which the application shall stand dismissed with costs and that the 1st respondent shall be at liberty to execute. Finally, that the application therefore stood dismissed on the 13/12/2024 and the 1st respondent has commenced the process of execution.
9. The court had initially directed that the application be heard by way of oral submissions but learned counsels went for written submissions. Learned counsels for the applicant and the 1st respondent filed their respective submissions. The other respondents did not participate in the application
10. Learned counsel for the applicant submitted that there is an error or mistake in the court’s ruling, apparent on the face thereof as per the grounds in support of the application outline above and supported the submissions with various authorities.
11. Learned counsel for the respondent on her part submits that the application is incompetent and does not lie and has traversed each of the grounds set down by the applicant in support of its application. She has also filed authorities to support her submissions.
12. I have considered the notice of motion application, the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application meets the threshold for grant of an order for review under section 80 Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 of the Civil Procedure Rules. Under these provisions of the law, a party seeking review is under obligation to demonstrate that:
a. there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there is some mistake or error apparent on the face of the record; or
c. that there is any other sufficient reason; and
d. that the application has been brought without unreasonable delay.
13. The present application is based on the assertion that there is a mistake or error apparent on the face of the record. I will refer to the definition of error or mistake apparent on the face of the record as made in the submissions of the applicant in the case of Nyamogo & Nyamogo Advocates vs. Kago (2001) 1 EA 173, where the Court of Appeal had this to say:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."
14. In the present case, the applicant came to court seeking several orders in one application dated 26/8/2024. There was a prayer for extension of time to file an appeal, a second prayer for an order for stay of execution pending hearing and determination of the application, and a third prayer for an order for stay of execution pending the hearing and determination of the appeal and finally an order for costs. Ordinarily, the court would have first considered the prayer for extension of time to file the appeal and granted or declined the same before considering the subsequent prayers. But considering that there was the prayer for stay of execution pending the hearing and determination of the application, such a prayer cannot be considered where there is no appeal filed as provided for under Order 42 Rule 6 CPR. There must be an appeal filed prior to the court granting the order of stay of execution. Yet, the applicant could not have filed an appeal because it was out of time. So, the sequence of events became, get an extension of time, file an appeal then get an order of stay. The applicant would have been required to first make an application for extension of time and only after the same was granted would it file the notice of appeal and memorandum of appeal and based on the same, the application for stay of execution. The court granted an omnibus order at the ex parte stage to take care at that moment only, the issues of there being an appeal on record in on which the order of stay pending hearing and determination of the application would be based to enable the applicant then come back to address the issue of extension of time to appeal. It then directed that the orders will be subject to confirmation after inter partes hearing. It was not obvious that the applicant would be granted any of those orders after the inter partes hearing. The court, upon hearing the application, could as well have declined the orders sought and struck out the memorandum of appeal filed based on the ex parte order, which was basically holding forte for the substantive prayer after hearing the application.
15. The order to file the appeal within 14 days of the ruling was therefore made after the court was satisfied of the merit of the application for extension of time. It overtook the earlier order made at the ex-parte stage which was only meant to take care of the application for stay pending hearing and determination of the application. There is no issue if the applicant had already filed the notice and memorandum of appeal. It simply means the same will be considered as duly filed. But it cannot be a basis to allege that the order granted by the court after the hearing of the application was in error.
16. Where I find mischief then is the assertion that the applicant cannot be made to bear the security ordered for stay of execution alone and that the 2nd, 3rd and 4th respondents must be made to share.
17. The application was made by the applicant and not jointly with the other respondents. The other respondents never appeared in court to respond to the application which I find was deliberate because the 3rd and 4th resondents had filed their own application before the Mombasa High Court vide HCCA No. E250 of 2024. They saw no need to participate in the present application.
18. The applicant then says that after all, the 2nd to 4th respondents who are the applicants in that application for stay, were not directed to make any deposit as security. However, the applicant is not telling this court that equally, the High Court in Mombasa had not granted any order of stay at the ex parte stage, unlike in the present case. That means the respondents as applicants in that case were at risk of execution, unlike the applicants in this case who were enjoying the stay orders. The two cases are therefore distinguishable on that basis.
19. The Court of Appeal in addressing the issue of adequacy of security and what form it should take in the case of Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 expressed itself as follows:
“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them.
So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so…The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates.”
20. This court clearly addressed the issue of security, finding that the applicant had not addressed it in its application yet it is a requirement to obtain an order for stay of execution. So that upon considering the application, it would need to deposit the entire decretal sum in court by depositing the balance of the sum that had not been deposited at the ex parte stage.
21. If the applicant felt overwhelmed by the order to deposit the entire decretal sum in court, the best it could do was perhaps to negotiate with the 2nd to 4th respondents to agree to bear the other half of the decretal sum, deposit it in court then approach the 1st respondent to stay the execution in both cases, consolidate them and proceed with hearing and disposal of the main appeal expeditiously seeing that those appeals arise from the same case.
22. But as things stand now, the applicant and the respondents are all exposed to execution because so far, in both files there are no orders of stay of execution. I would say therefore that this application is either made out of a deliberate misapprehension of the court’s orders herein made on 12/11/2024 or outright mischief because the orders that the court made appear to me straightforward and follow the sequence of events herein that they require no correction or even elaboration.
23. I am guided by the case cited by learned counsel for the applicant of National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR, the Court of Appeal held that:
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."
24. I find that the application herein has no merit and the same is dismissed with costs to the 1st respondent.
25. Orders accordingly.
26. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 12th day of March 2024.
ANDAYI W. F.
JUDGE
In the presence of:
Oweya (Ms) for applicant.
Osino (Ms) for the 1st respondent.
N/A for 2nd, 3rd and 4th respondents.
Johnson: Court Assistant.
a. The applicant is granted leave to file appeal out of time and to do so within the next 14 days.
b. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCCC No. 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into court the balance of the decretal sum within 21 days from today, the first half having been deposited at the ex parte stage.
c. Failure by the applicant to abide by the conditions hereinabove the application dated 26/8/2024 will be deemed to have been dismissed and the respondents will be at liberty to execute.
d. Costs of the application will abide by the Appeal.
2. The applicant, Associated Motors Ltd has come back to court in a notice of motion dated 5/12/2024 seeking the following orders for this court to:
a. review, vary and or set aside its ruling/order delivered on 22nd November 2024, directing the applicant to pay the balance of the decretal sum in court.
b. review, vary and or set aside the decision/order requesting the defendant (sic) to file its appeal again within 14 days.
c. extend the order of stay of execution issued on 28th August 2024 pending the hearing and determination of this application.
3. The court did not certify the matter as urgent and did not issue the prayer for extension of the order of stay issued on 28/8/2024 at the ex parte stage.
4. The present application for review is premised on the ground that there is an apparent mistake or error on the face of the record for various reasons. First, that the court had already admitted the applicant’s appeal in its directions issued on 28/8/2024 and therefore its order of 22/11/2024 directing that “the applicant is granted leave to file appeal out of time and to do so within the next 14 days,” was in error as it amounts to the applicant being required to file the appeal twice. Secondly, that at the ex parte stage, the court having ordered the applicant to deposit half of the decretal sum amounting to KShs 978,075/=in court which the applicant did, it was an error or mistake for this court in the ruling dated 22/11/2024 to find that the applicant had not furnished any security and direct the applicant to deposit the other half in court. Thirdly, that the court also erred in directing the applicant to deposit the entire decretal sum in court when the judgment delivered by the trial court was against the applicant, the 2nd, 3rd and 4th respondents herein and that it is only fair and in the interest of justice that the other half be borne by the 2nd, 3rd and 4th respondents. That, the applicant does not have the means to raise the other half considering it had already furnished security at the ex-parte stage and its finances are stretched. That the 3rd and 4th respondents have also filed an appeal in Mombasa, being Civil Appeal No. E250 of 2024 over the same case, as well as filed an application for stay of execution in the same case and it is only fair that they shoulder the other half of the decretal amount and in any case, they have not been condemned to deposit any security. Finally, that the decretal amount is KShs. 1,956,150 and not KShs. 2,500,000 as held by this court in its ruling under review.
5. The application is brought under Order 45 Rule 1 and Order 51, of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
6. The application is supported by the affidavit of Rebecca Kivinda, human resource manager sworn on 4/12/2024 largely in terms set out above as per the grounds in support.
7. The application is opposed by the 1st respondent through Mwaita Hamisi Mbeta’s replying affidavit sworn on 14/12/2024. He deposes that the application is without merit as there is no error or mistake apparent on the face of the record to warrant a review and that the court is functus officio.
8. He deposes further that contrary to what the applicant deposes in its supporting affidavit, the court granted leave to the applicant to lodge an appeal out of time at the ex parte stage subject to a rider that this issue had to be considered by the court at the inter partes stage. The court therefore, correctly considered the issue in its ruling after hearing the parties and gave directions based on the evidence before the court. That the court in its ruling further exercised its discretion and confirmed that the applicant had already deposited half the money and further ordered the applicant to deposit the balance of the decretal sum in court within 21 days from the 22/11/2024 failure to which the application shall stand dismissed with costs and that the 1st respondent shall be at liberty to execute. Finally, that the application therefore stood dismissed on the 13/12/2024 and the 1st respondent has commenced the process of execution.
9. The court had initially directed that the application be heard by way of oral submissions but learned counsels went for written submissions. Learned counsels for the applicant and the 1st respondent filed their respective submissions. The other respondents did not participate in the application
10. Learned counsel for the applicant submitted that there is an error or mistake in the court’s ruling, apparent on the face thereof as per the grounds in support of the application outline above and supported the submissions with various authorities.
11. Learned counsel for the respondent on her part submits that the application is incompetent and does not lie and has traversed each of the grounds set down by the applicant in support of its application. She has also filed authorities to support her submissions.
12. I have considered the notice of motion application, the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application meets the threshold for grant of an order for review under section 80 Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 of the Civil Procedure Rules. Under these provisions of the law, a party seeking review is under obligation to demonstrate that:
a. there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there is some mistake or error apparent on the face of the record; or
c. that there is any other sufficient reason; and
d. that the application has been brought without unreasonable delay.
13. The present application is based on the assertion that there is a mistake or error apparent on the face of the record. I will refer to the definition of error or mistake apparent on the face of the record as made in the submissions of the applicant in the case of Nyamogo & Nyamogo Advocates vs. Kago (2001) 1 EA 173, where the Court of Appeal had this to say:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."
14. In the present case, the applicant came to court seeking several orders in one application dated 26/8/2024. There was a prayer for extension of time to file an appeal, a second prayer for an order for stay of execution pending hearing and determination of the application, and a third prayer for an order for stay of execution pending the hearing and determination of the appeal and finally an order for costs. Ordinarily, the court would have first considered the prayer for extension of time to file the appeal and granted or declined the same before considering the subsequent prayers. But considering that there was the prayer for stay of execution pending the hearing and determination of the application, such a prayer cannot be considered where there is no appeal filed as provided for under Order 42 Rule 6 CPR. There must be an appeal filed prior to the court granting the order of stay of execution. Yet, the applicant could not have filed an appeal because it was out of time. So, the sequence of events became, get an extension of time, file an appeal then get an order of stay. The applicant would have been required to first make an application for extension of time and only after the same was granted would it file the notice of appeal and memorandum of appeal and based on the same, the application for stay of execution. The court granted an omnibus order at the ex parte stage to take care at that moment only, the issues of there being an appeal on record in on which the order of stay pending hearing and determination of the application would be based to enable the applicant then come back to address the issue of extension of time to appeal. It then directed that the orders will be subject to confirmation after inter partes hearing. It was not obvious that the applicant would be granted any of those orders after the inter partes hearing. The court, upon hearing the application, could as well have declined the orders sought and struck out the memorandum of appeal filed based on the ex parte order, which was basically holding forte for the substantive prayer after hearing the application.
15. The order to file the appeal within 14 days of the ruling was therefore made after the court was satisfied of the merit of the application for extension of time. It overtook the earlier order made at the ex-parte stage which was only meant to take care of the application for stay pending hearing and determination of the application. There is no issue if the applicant had already filed the notice and memorandum of appeal. It simply means the same will be considered as duly filed. But it cannot be a basis to allege that the order granted by the court after the hearing of the application was in error.
16. Where I find mischief then is the assertion that the applicant cannot be made to bear the security ordered for stay of execution alone and that the 2nd, 3rd and 4th respondents must be made to share.
17. The application was made by the applicant and not jointly with the other respondents. The other respondents never appeared in court to respond to the application which I find was deliberate because the 3rd and 4th resondents had filed their own application before the Mombasa High Court vide HCCA No. E250 of 2024. They saw no need to participate in the present application.
18. The applicant then says that after all, the 2nd to 4th respondents who are the applicants in that application for stay, were not directed to make any deposit as security. However, the applicant is not telling this court that equally, the High Court in Mombasa had not granted any order of stay at the ex parte stage, unlike in the present case. That means the respondents as applicants in that case were at risk of execution, unlike the applicants in this case who were enjoying the stay orders. The two cases are therefore distinguishable on that basis.
19. The Court of Appeal in addressing the issue of adequacy of security and what form it should take in the case of Nduhiu Gitahi vs. Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 expressed itself as follows:
“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them.
So long as it is adequate, then the form of it is a matter, which is immaterial. In an application for stay pending appeal the court is faced with a situation where judgement has been given. It is subject to appeal. It may be affirmed or it may be set aside. The court is concerned with preserving the rights of both parties pending that appeal. It is not the function of the court to disadvantage the defendant while giving no legitimate advantage to the plaintiffs. It is the duty of the court to hold the ring even-handedly without prejudicing the issue pending the appeal. For that purpose, it matters not whether the plaintiffs are secured in one way rather than another. It would be easier for the defendants or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so…The aim of the court in this case was to make sure, in an even-handed manner, that the appeal would not be prejudiced and that the decretal sum would be available if required. The respondent is not entitled, for instance, to make life difficult for the applicant, so as to tempt him into settling the appeal. Nor will either party lose if the sum is actually paid with interest at court rates.”
20. This court clearly addressed the issue of security, finding that the applicant had not addressed it in its application yet it is a requirement to obtain an order for stay of execution. So that upon considering the application, it would need to deposit the entire decretal sum in court by depositing the balance of the sum that had not been deposited at the ex parte stage.
21. If the applicant felt overwhelmed by the order to deposit the entire decretal sum in court, the best it could do was perhaps to negotiate with the 2nd to 4th respondents to agree to bear the other half of the decretal sum, deposit it in court then approach the 1st respondent to stay the execution in both cases, consolidate them and proceed with hearing and disposal of the main appeal expeditiously seeing that those appeals arise from the same case.
22. But as things stand now, the applicant and the respondents are all exposed to execution because so far, in both files there are no orders of stay of execution. I would say therefore that this application is either made out of a deliberate misapprehension of the court’s orders herein made on 12/11/2024 or outright mischief because the orders that the court made appear to me straightforward and follow the sequence of events herein that they require no correction or even elaboration.
23. I am guided by the case cited by learned counsel for the applicant of National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR, the Court of Appeal held that:
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."
24. I find that the application herein has no merit and the same is dismissed with costs to the 1st respondent.
25. Orders accordingly.
26. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 12th day of March 2024.
ANDAYI W. F.
JUDGE
In the presence of:
Oweya (Ms) for applicant.
Osino (Ms) for the 1st respondent.
N/A for 2nd, 3rd and 4th respondents.
Johnson: Court Assistant.