Smata General Supplies Limited v Claude & another (Civil Appeal 261 of 2019) [2025] KEHC 135 (KLR) (Civ) (16 January 2025) (Ruling)
Neutral citation:
[2025] KEHC 135 (KLR)
Republic of Kenya
Civil Appeal 261 of 2019
CW Meoli, J
January 16, 2025
Between
Smata General Supplies Limited
Applicant
and
Tennyson Jonathan Claude
1st Respondent
Linumak Investment Limited
2nd Respondent
Ruling
1.For determination is the motion dated 18.10.2024 by Smata General Supplies Limited (hereinafter the Applicant) seeking inter alia to set aside and or vary the Court’s order of 09.10.2024 dismissing the appeal; that the appeal herein be reinstated for hearing on merit; and directions do issue. The motion is expressed to be brought pursuant Section 1A, 1B & 3A of the Civil Procedure Act (CPA), Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules (CPR). And is premised on the grounds amplified in the supporting affidavit sworn by Lwanga Mbeche Caroly, the director of the Applicant duly authorized to swear the affidavit on behalf of the Applicant.
2.The gist of his affidavit is that there is an error apparent on the face of the record leading to the delivery of the ruling on 09.10.2024. That following directions for disposal of the latter motion by way of submissions the ruling was eventually delivered on 09.10.2024. By which ruling the court dismissed the Applicant’s notice of motion dated 09.10.2023. He goes on to depose that although counsel for Tennyson Jonathan Claude (hereinafter the 1st Respondent) had denied service of the Record of Appeal, this Court verified the correct email address from the 1st Respondent’s counsel and rightly observed that there was evidence of service by virtue of an email dated 03.07.2023 that was attached to the motion dated 09.10.2023. And the court urged the parties to attempt a compromise of the matter.
3.Further that, parties attempted to settle the matter amicably and subsequently entered into a consent compromising the motion dated 09.10.2023 to which the Respondents had not filed any response. He asserts that he was thereafter informed that the appeal was to be disposed of under the Rapid Results Initiative (RRI) and that directions were issued upon the adoption of the consent. That the consent in question was filed electronically on 07.05.2024 and a physical copy submitted to the Court on the same date for adoption administratively as per the Deputy Registrar’s directions. He further states that pursuant to directions issue on 06.05.2024, the Applicant filed and served the submissions in respect of the main appeal on 27.05.2024 whereupon judgment was reserved for 03.10.2024 and rescheduled for 09.10.2024.
4.He asserts that the Respondents were served with all notices and returns of service filed. Hence, there is an error apparent on the face of the record given that the motion dated 09.10.2023 had been compromised and submissions filed in respect of the main appeal. He states that unless the motion is granted, the Applicant will be greatly prejudiced and stands to be condemned unheard. In conclusion, he deposes that the Appplicant has an arguable appeal with a high chance of success, and therefore it would be in the interest of justice that the appeal is heard and determined on its merit.
5.The 1st Respondent and Linumak Investment Limited (hereinafter the 2nd Respondent) offered no responses to the Applicant’s motion. Directions were taken on the disposal of the Applicant’s motion on the premise of the affidavit material in support thereof.
6.The Applicant’s motion invokes inter alia the provisions of Section 3A of the CPA as well as Order 45 Rule 1 of the CPR. The former provision, specifically reserves “the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court” of which its purport was reasonably addressed by the Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR. The latter provision provides that; -(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.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
7.The main prayer in the motion essentially seeks to set aside and or vary the orders of the court issued on 09.10.2024. However, the grounds cited, principally, error apparent on the face of the record, invoke the review jurisdiction of the court in relation to the decision delivered on 9.10.2024. Despite the seeming ambiguity it appears that the Applicant’s intention was to invoke the Court’s review jurisdiction. Hence the court will proceed to consider the motion as such. Characteristic of their previous indifferent and lethargic conduct marked by non-attendance of court and non-compliance with orders in the matter, the Respondents abstained from the application. That notwithstanding, the court must satisfy itself that the Applicant’s motion satisfies the considerations relevant to a review motion.
8.In Jason Ondabu t/a Ondabu & Company Advocates & 2 Others v Shop One Hundred Limited [2020] eKLR the Court of Appeal stated that: -
9.There is a long line of authorities on the principles governing review applications brought under Order 45 (1) of the CPR. In the judgment of Okwengu JA in Associated Insurance Brokers v Kenindia Assurance Co. Ltd [2018] eKLR the Court of Appeal stated that:In Nyamogo and Nyamogo Advocates v. Kogo [2001]1 E.A. 173 this Court further explained an error apparent on the face of the record as follows:
10.Further, in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR the Court of Appeal held that:
11.Before addressing the crux of the motion, it would be apt to place it in context. The appeal herein was filed on 14.05.2019. There was no activity in the matter for over two years, leading to issuance of the Notice to Show Cause why the suit should not be dismissed for want of prosecution (NTSC) scheduled for 06.10.2022. On the said date, no party appeared and Chepkwony, J. proceeded to dismiss the appeal for want of prosecution. The Applicant thereafter moved the Court vide the motion dated 04.04.2023 seeking to set aside the dismissal orders issued on 06.10.2022. When the said motion came up before me for hearing on 20.06.2023, it was compromised by consent in the following terms: -
12.When the appeal came up for directions before the Deputy Registrar (DR) on 05.10.2023, upon hearing representations by counsel appearing in the matter, the DR expressed herself as follows: -
13.This outcome prompted the motion dated 09.10.2023 in respect of which the Court gave directions on 16.04.2024 and rendered a ruling on 09.10.2024. I find it useful to quote relevant facets of the said ruling for the benefit of the parties’ herein. Upon considering the motion, this Court proceeded to address itself as hereunder: -
14.The current review motion is premised on the ground of error or mistake apparent on the face of the record, based on a purported compromise of the motion dated 09.10.2023, allegedly prior to the court’s ruling of 9.10.2024. The question therefore is whether the Applicant by its present motion has demonstrated the asserted error or mistake apparent on the face of the record. First, drawing guidance from the dicta in National Bank of Kenya Ltd (supra), it is evident that the question surrounding the consent dated 02.05.2024 and filed on 07.05.2024 was not an issue for consideration before the Court in the ruling delivered on 09.10.2024.
15.Secondly, the purported consent was filed after 16.04.2024 when parties took directions on disposal of the motion dated 09.10.2023. And most significantly, there are no proceedings on record indicating the adoption of the said consent as an order of the court. The record shows that counsel for the Applicant attended before the DR on 06.05.2024 and on 18.07.2024 before this Court, all prior to delivery of this Court’s ruling on the Applicant’s motion on 09.10.2024. The proceedings before the DR and this court do not contain any reference by counsel to the alleged consent, or the alleged directions by the DR to counsel to avail a physical copy of the consent for ‘’administrative’’ adoption. In any event, a perusal of the Case Tracking System (CTS) reveals that the consent had not been lodged in the system as of 6.05.2024, but was filed on 7.05.2024, one day after the proceedings before the DR.
16.What however is on record before the DR are directions issued on the appeal, most probably initiated by the court with the intention of perfecting the appeal, together with others identified by the court, in readiness for the Civil Division RRI exercise scheduled later in the year. These directions are clearly erroneous because, they presume a subsisting appeal, whereas no consent to revive the appeal had by 6.05.2024 been filed, adopted or recorded. Subsequently on 29.05.2024 when the appeal was presented before me in chambers for admission, I declined to admit it noting that from the record, the appeal stood dismissed for want of prosecution. It was not until the delivery of the ruling of 9.10.2024 and subsequently on 16.10.2024 that counsel for the Applicant first raised the matter of the parties’ consent.
17.A consent filed into court is not a court order, but merely a mutual proposition by the parties concerning a matter. It requires adoption by the court to gain the force of a court order; indeed, consents filed or proposed by parties are adopted at the discretion of the court, depending on the facts of the matter. A court is not bound to accept any and every consent presented by parties. Further, it is the duty of counsel to pursue the formal adoption of consents by the court as court orders, and not to presume on the court, as appears to be the case here. The consent now cited by the Applicant did not obtain court sanction, as required, and hence transform from a mere proposition to a court order.
18.Thus, by the date of the ruling delivered on 9.10.2024, the appeal still stood dismissed pursuant to the earlier dismissal order by Chepkwony J on 6.10.2022 and the Applicant’s subsequent default regarding the terms of the consent recorded on 20.06.2023 reviving the appeal for the first time. Given the history of this matter as outlined in the ruling of 9.10.2024, the adoption of the consent, even if brought to the court’s attention prior to the ruling cannot be presumed an automatic affair as the Applicant now appears to suggest. The court cannot condone contumacious delay by parties through indolent collusion, indifference or consents whose effect is to indefinitely prolong the pendency of a matter. Here the Applicants must take responsibility for their lethargic prosecution of the appeal, but Respondents, as earlier observed, are equally guilty.
19.That said, the Court’s decision delivered on 09.10.2024 not having been preceded by an adopted consent on reinstatement of the appeal cannot be said to amount to an error or mistake apparent on the face of the record. Therefore, it is the Court’s firm finding that the asserted ground of error or mistake apparent on the face of the record has not been demonstrated.
20.In any event, if the Applicant was aggrieved with the merits of the ruling delivered on 9.10.2024, an appeal rather than a review would have been appropriate. Recently, the Court of Appeal in Solacher v Romantic Hotels Limited & another (Civil Appeal 167 of 2019) [2022] KECA 771 (KLR) cited with approval the decision of Bennett J in Abasi Belinda v Frederick Kangwamu and Another [1963] EA p.557 to the effect that:
21.In the result, the Court’s considered view is that the Applicant’s motion dated 18.10.2024 is without merit, and it is hereby dismissed with no orders as to costs.
DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 16TH DAY OF JANUARY 2025.C. MEOLIJUDGEIn the presence ofFor the Applicant:For the Respondents:C/A: Erick