RULING
1. Before me is the application dated 22/12/2023 filed under certificate of urgency and brought under Sections 3A & 80 of the Civil Procedure Act, Order 42 Rule 6, Order 45 Rules 1, 2 & 3(2) and Order 51 Rule 1 of the Civil Procedure Rules. It seeks the following orders;
a) Spent.
b) The interim orders of stay of execution granted on 24/11/2023 be extended ex parte pending the inter-partes hearing and determination of this application and the appeal filed as the case may be.
c) The honorable court be pleased to review orders (b), (c), (e) issued as conditions of stay of execution in the ruling delivered by the learned lady justice dated 24/11/2023.
d) The costs of this application abide the outcome of the appeal.
2. The application is supported by the grounds on its face and the Affidavit of Mohammed Rafiq Pasta sworn on the same day. He deponed that, orders (b) & (c) of this courts ruling of 24/11/2023 are commensurate to a final determination of the appeal at an interlocutory stage as the end result of their compliance is synonymous to complying with the terms of judgment that is before the court for review. A copy of the ruling was exhibited as MR-01.
3. He deponed that order (b) requires them to pay kshs 3,140,095/= directly to the Respondents which they may not be able to refund as they have not disclosed their financial means. That the amount is above the statutory limit that their insurance can requisition and it puts their business in a precarious position if their insurance is unable to comply and protect them.
4. He deponed that order (c) requires them to pay Kshs 6,280,191/= before the appeal is heard and determined but they do not have the money as it is too high for a business like theirs. That the preliminary orders have put them in a position similar to complying with a disputed judgment and are therefore unjust and should be reviewed. That his insurer is willing to furnish security in the form of a bank guarantee pending the hearing and determination of the appeal.
5. He deponed that the appeal is likely to be reviewed to Kshs 1,297.488/= submitted by his Advocates in the lower court and he believes that a bank guarantee of a similar amount will suffice as security. That their business depends on trucks for survival and he prays for extension of the stay orders to prevent the Respondents from attaching and selling their vehicles before the appeal is heard and determined.
6. The application was opposed through the respondent’s replying affidavit sworn on 15/03/2024. He deponed that the application does not meet the threshold for review. That the ground about inability to refund the decretal amount was addressed by the court in the impugned ruling and it is not a ground of review. He deponed that this court is not and cannot be bound by the Insurance Statutory limit in doing justice and that the said statutory limit is not a ground for review.
7. He deponed that it is not a sufficient ground of review that another judge could have taken a different view of the matter or that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion. That the Applicants are simply asking this court to sit on appeal in its own decision.
8. He deponed that the subject road traffic accident resulted in five cases and the defendants were held 100% in all of them. That three of the cases were soft tissue injury claims and all of them have been settled. The relevant letters are exhibited as JMM 1(a), (b) & (c).
9. He deponed that after the ruling of 24/11/2023, his Advocates supplied the appellant’s Advocates with the necessary documents for purposes of opening a joint interest earning account. The relevant email correspondence and letters are exhibited as JMM 2(a) & (b), JMM 3(a) & (b).
10. He deponed that according to information from his Advocates and the plaintiffs/Respondents in HCCA E072 of 2023, the Applicants/Appellants herein approached then and reached an out of court settlement for an all-inclusive sum of Kshs 3,000,000/= which has already been paid hence the appeal is due for withdrawal. That out of the five aforesaid cases, only the current matter remains unsettled/unpaid and instead of complying with the ruling of 21/11/2023, the Appellants have applied for review.
11. He deponed that the Appellants are only concerned about the financial hardships that may occur to their truck business but not about justice to the deceased’s estate. That the deceased left three school going minors who are in need of school fees. A school admission letter was exhibited as JMM 4.
12. The application was canvassed through written submissions.
The Applicants’ Submissions
13. The Applicants identified the issue for determination to be; whether the unique circumstances that led to this application will justify the exercise of discretion to review the orders issue on 24/11/2023. Relying on Sarder Mohammed -vs- Charan Singh Nand Sing & Anor, they submitted that section 80 of the Civil Procedure Act confers an unfettered discretion on the court to make such orders as it thinks fit on review. They relied on Tokesi Mambili & Others -vs Simion Litsanga; Civil Appeal 90 of 2001 – Kisumu where the Court of Appeal stated;
“Where the application is based on sufficient reason, it is for the court to exercise its discretion….in order to obtain a review, an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made.”
14. They submitted that the appeal was filed by the 1st Appellant’s insurer under the principle of subrogation hence any liability against them is borne by the insurer. That the insurance Act places a cap of kshs 3,000,000/= and as such, there is an absurdity where a court issues an order that stricto senso cannot be complied with. They relied on Philip Kiprotich Tuitoek -vs-Edna Jebiwott Kiplagat & 2 Others (2020) eKLR for the submission that courts do not grant orders in vain as they are meant to be implemented.
15. They submitted that the information which necessitated the instant application could not be presented at the time the impugned orders were made as they did not anticipate such orders. They relied on Kenya Shell Ltd -vs- Kobil Petroleum Ltd (2006) eKLR where the court stated;
“ discretion must be exercised fairly and judiciously in the interest of justice and the key consideration that the court should have is whether the adverse party would be prejudiced and whether a just cause has been shown by the applicant to deserve the exercise of the courts discretion.”
The Respondents’ Submissions
16. The Respondents submitted that the Applicants are simply asking the court to sit on appeal in its own decision and relied on Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) [2019] KEHC 6379 (KLR) where the court stated;
“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.
13. The starting point is 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 another Judge could have taken a different view of the matter. Nor can it be a 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 law cannot be a ground for review.
20. Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review.
21. The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.
27. A court can review a judgment for any other sufficient reason. In Sadar Mohamed vs Charan Signh and Another it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure (writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression \'any other sufficient reason’...means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out..., would amount to an abuse of the liberty given to the tribunal under the Act to review its judgement.
17. I have considered the application in its totality, the rival submissions and the issue for my determination is whether it is tenable.
Analysis and Determination
18. Review is provided for under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules as follows;
Order 45, rule 1: Application for Review of decree or order.
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.
19. The three limbs discernible from part (b) above are;
a) Discovery of new and important matter or evidence.
b) Mistake or error apparent on the face of the record.
c) Any other sufficient reason.
20. I have carefully considered the application and note what I stated in my ruling at paragraph 21: to the effect that the applicants had submitted in the lower court that liability be apportioned at 50:50 and that they would be obligated to pay half the decretal sum. My order was intended to take into account that submission by the respondent.
21. Hence, it is evident that my orders ought to have read as follows:
a. The application for stay of execution pending the hearing and determination of this appeal is allowed.
b. That the applicant to pay the respondent one third of half the decretal sum within 30 days hereof:
c. the other two thirds be deposited within 30 days hereof in a joint interest earning account in the names of the advocates for the parties for the performance of the decree.
22. In the circumstances the orders are accordingly reviewed to be complied with strictly within 30 days of this order.
23. The costs of this application be in the cause.
Dated, signed and delivered via CTS on 18th October 2024
Mumbua T Matheka
Judge
Ms Nelima/Ms Elizabeth: Court Assistants
Applicant\'s Advocates
Humphrey & Co. LLP Advocates
inquiry@humphreyandcompany.co.ke
Respondents’ Advocates
Mutavi & Associates
mutaviadvocat@gmail.com