Sereria v Alliance (One) Tobacco (K) Limited (Civil Suit 2 of 2012) [2013] KEMC 114 (KLR) (26 November 2013) (Ruling)
Neutral citation:
[2013] KEMC 114 (KLR)
Republic of Kenya
Civil Suit 2 of 2012
PA Ndege, Ag. PM
November 26, 2013
Between
Isaya Tatiru Sereria
Plaintiff
and
Alliance (One) Tobacco (K) Limited
Defendant
Ruling
1.This is an application by way of a Notice of Motion dated 15.07.2013 by the plaintiff herein, Isaya Tatiru Sereria, seeking the following orders:1.The Honourable Court be pleased to review the judgment delivered on 06.06.2013 and thereafter re-hear the suit and take further evidence.2.The costs of this application.
2.He is seeking the orders pursuant to sections 1A and 80 of the Civil Procedure Act as read with Order 45 rule 1(1)(a) and 5 of the Civil Procedure Rules.
3.The application is based on the 4 grounds on the face of its and on the Supporting Affidavit of Isaya Tatiru Sereria sworn at Migori on 16.07.2013; mainly that: -1.The application has been made expeditiously and without any unreasonable delay.2.The failure to call evidence was occasioned by the plaintiff's advocate's negligence and the same should not be visited on the client.3.The names of the available witnesses were given to the advocate and with the exercise of due diligence should have been allowed to adduce evidence but, the need to do justice should prevail and all the available evidence be presented to court to be able to decide the case on merit.4.No prejudice will be occasioned if the court makes the review order.
4.The application together with the supporting affidavit were served on the Defendant herein, Alliance One Tobacco (K) LTD, which filed their response in the form of a Replying Affidavit sworn at Migori on 26.09.2013, by Davis Papa,their Security and Legal Manager, where they opposed the application herein.
5.The application proceeded for hearing inter-partes before me on 22.11.13 where Mr. Okoth appeared for the Plaintiff; while Mr. Kisia represented the Defendant.
6.The arguments during the hearing mainly reiterated the contents of the affidavits herein.
7.Learned counsel for the plaintiff argued in court that they are relying on the negligence or mistake by the former counsel for the plaintiff, who during the trial herein misadvised the plaintiff and or omitted to present sufficient evidence which were at his disposal. That if all the evidence had been presented to the court, then the judgment and the decision herein would have been different. That he is relying on the third ground for review as there are sufficient reasons for review because consequences of a mistake of an advocate should not be visited on the client, the plaintiff herein, who is a peasant farmer whose properties were wrongfully attached herein. That this therefore makes its sufficient for this court to review its judgment as prayed by them herein so that all the relevant evidence is availed so that the court reaches a proper decision. Learned counsel for the plaintiff conceded that there was some kind of indiligence on their part, but he insisted that the same should not be visited on his client because the defendant has not demonstrated any prejudice they are likely to suffer should the application be allowed and they can nevertheless be compensated by way of costs.
8.For the defendant, it was argued that the plaintiff's former counsel ought to have sworn and filed an affidavit to prove that he had all the instructions and the evidence from the plaintiff. That in the absence of the affidavit from the counsel, we may not just presume and believe that the plaintiff presented him with the evidence or the instructions as claimed. That the matter was heard inter-partes in the presence of both parties and their counsel. The defendant stands prejudiced in the sense that allowing the application will delay the matter further.
9.Surprisingly, there were no authorities cited herein to guide me in making a determination herein.
10.Parties herein, however, appear to be aware of the statutory conditions for review under Order 44 rule 1 of the Civil Procedure Rules, 2010.
11.With due respect to the learned counsel for the defendant, it was held in The Official Receiver And Liquidator v Freight Forwarders Kenya Ltd Civil appeal number 237 of 1997 delivered on 07.04.2000 by the Court of Appeal that any other sufficient reason for review in order 44 rule 1(1) need not be analogous with the other 2 alternatives in the order; in view of section 80 of the Civil Procedure Act, which confers an unfettered right to apply for a review.
12.It simply means that the reason must be one that is sufficient to the court to which the application for review is made and it will therefore be counter to the interests of justice to limit them to the discovery of new and important matters or evidence, or a mistake or error apparent on the face of the record as argued by the learned counsel for the defendant.
13.The main issue for my determination herein is therefore whether there are sufficient reasons herein, which have been disclosed in the application herein, and by the plaintiff, which can make me exercise my unfettered discretion and powers under Section 80 of the Civil Procedure Act, as read with Rule 1 (1) of Order 44 CPR, 2010, so as to allow the application herein.
14.The grounds herein are as summarised herein above. The plaintiff is simply alleging that he gave full instructions to his counsel then on record. That the instructions included the relevant witnesses and evidence, which if presented in this suit, he believes could have made this court reach a different judgment which could have protected his rights to property that he claims were wrongfully attached and/or seized by the defendant herein. That the counsel misadvised him out of mistake, indiligence and/ or negligence. That the mistake, indiligence and/ or negligence of the Counsel should not be visited on him, a peasant farmer, who can readily compensate the defendant for any prejudice that they might face should the matter be heard afresh as prayed by him.
15.In short, the plaintiff is praying for a review of the judgment herein and then a retrial or a fresh hearing where he can present the evidence which his then advocate failed to present during the trial herein.
16.To begin with, and with due respect to the plaintiff herein, Judgments are and cannot be reviewed, but the decree or order/s therein. There is also no provision for reviewing a judgment and then subjecting the matter to a re-trial as prayed by him herein. Litigation must have an end. That is why courts exist: to hear and make a determination on the dispute.
17.In EVANS BWIRE VRS ANDREW NGIDA Kisumu High Court Civil Appeal Number 103 of 2000, it was held that an application for review will only be allowed on very strong grounds if its effect will not amount to rehearing the original application afresh.
18.It therefore means that notwithstanding the strength of the grounds, the consequence of a review application should not be a re-hearing as sought by the plaintiff herein.
19.Such retrials or rehearings leads to delay which leads to costs which, though can be compensated, will be prejudicial to the party compensating in terms of the expenses; while the successful party shall be prejudiced in terms of time taken during the retrial and also the delay in enjoying the fruits of the litigation/ judgment which prima faciely, he is entitled. My humble view is that the delay caused by the re-trial or re-hearing might lead to him incurring much costs probably more than those he is seeking from the defendants herein. He states that he is willing to compensate the defendant in costs of the delay. He may however not understand that he will have to pay the defendants costs for the two trials, and the application herein. The re-hearing of the suit as prayed may therefore lead to an absurdity as it may make the plaintiff herein, a self proclaimed peasant become more poorer as he will end up incurring expenses for both himself and the defence for the trial and the re-trial.
20.I also strongly believe that such application for review based on any other sufficient reason which is not analogous to or ejusdem generis with the first two circumstances in Order 44, as in the instant case, may not be available where the reason given is simply a mistake or negligence on the part of an advocate for that amounts to taking the court and the dispute for granted.
21.I do also feel that to allow the application for a review herein, having found that it will lead to an undesirable consequence, is therefore not in the interest of the overriding objective of the Civil Procedure as provided for in Section 1A of the Civil Procedure Act; and a speedier and fairer trial as provided for under Article 159(2) of the Constitution which provides that: -(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;'
22.Though this Court has no jurisdiction to interpret the Constitution, I still may not be at fault just to comment that status includes economic status; while to re-open this case for a fresh trial as sought will have the effect of delaying this matter further, might be prejudicial to both parties herein and therefore against the constitutional principle under Article 159(2)(b), quoted hereinabove.
23.One of the reasons for the dismissal of the plaintiff suit herein was for the failure to prove the special damages sought. Going by his application and the annexure, that is not one of the important evidences that he wants to be received in the intended re-trial prayed for herein. No other witness filed his written statement together with his Plaint whose contents he duly verified in an affidavit as required.
24.Whereas I do understand the general principle that mistakes, and sometimes negligence, on the part of an advocate should generally not be visited on the client/ litigant, each case must depend on its peculiar circumstances and facts. Depending on the circumstances of each case, an applicant, including the plaintiff herein, may therefore be relieved from the mistake or even negligence of his advocate; but in some cases, as in the present case, justice will be better served by telling the applicant to get indemnity from his advocate for his mistake or negligence.
25.The best remedy herein, as submitted by the defence counsel, is therefore for the plaintiff to pursue the former counsel for negligence. Otherwise allowing the application herein will be tantamount for example, allowing aggrieved parties to file for a retrial in cases where they have exhausted the opportunity to present their evidence, thereby prolonging the dispute and incurring heavy expenses. In an adversarial system such as ours, the dispute is won or lost through the evidence and opportunity taken in round 1, 90 minutes on the pitch. No replay or re-run or a retrial/ re-hearing as desired by the plaintiff herein. That is not within the Constitutional mandate of the Judiciary to promote expensive and prolonging of disputes. The plaintiff had his opportunity during round 1, the 90 minutes and was represented by an able counsel. In a football game, the team coaches select their best 11 players to participate in the 90 minutes match. The losing team cannot thereafter, for example, say that they are praying for a replay simply because their coach failed them by fielding weak players. The remedy for such a team is to review their contract with their coach, and in case of professional negligence on his part, pursue him for that; and not be seen to be subjecting the other team and their players, fans etc. to a replay thereby bringing the game into disrepute.
26.The plaintiff and his counsel presented their evidence and voluntarily closed their case. They continued to participate in the defence hearing and even put in their arguments during the submissions. It is presumed that the Counsel acted on full instructions from the plaintiff, his client herein and without proof of any mistake, fraud on the part of the advocate he is presumed to have acted so in full authority and instructions from the plaintiff herein.
27.Even if the Counsel could have compromised this suit, or even entered into a consent to allow the suit, then he could have been presumed to have done so with the full authority and instructions of his client, the plaintiff herein. Without proof of any coercion, undue influence, honest mistake, misrepresentation or fraud, then no review could have been allowed solely on the reason that the counsel erred, or failed to advise the plaintiff.
28.Mulla – The Code of Civil Procedure, Vol. 1 page 53, states:
29.The extent of the authority of the advocate to handle and even compromise suits on behalf of clients is set out in a passage in The Supreme Court Practice 1976____ (vol.2) paragraph 2013 page 620 as follows:
30.In the case of Brooke Bond Leibig (T) Limited v Mallya [1975] E.A. 266, Law, J.A. said as follows:
31.For the reasons hereinabove, I do hereby find no sufficient reason under Order 44(1) CPR, to have the decree herein reviewed. It will lead to undesirable consequences in term of precedent and costs. I do believe that because of the doctrine of stare decisis, I shall be frequently called upon to review such matters in future where aggrieved parties troop back to the same court to have a matter retried thereby prolonging a dispute. The defendant herein might also seek to open up the dispute herein after the intended re-hearing if he ends up losing, citing incompetency or negligence on the part of the counsel. It is common for parties to blame their loss on counsel, even where possibly scant instructions were given to the counsel. In cases where a counsel goes contrary to a client's instructions then, as rightly argued by the defendant's counsel and the defendant herein, the remedy is simply not to a hire a fresh advocate after the case is concluded, but also to recover the damages to the extent of the loss from the counsel for professional negligence. Litigation must clearly have an end.
32.I have nevertheless already found it undesirable, illegal and unreasonable to allow the application and subject the suit herein to a re-hearing as prayed. The upshot is that the application herein is hereby dismissed with costs to the defendant.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS 26th DAY OF November, 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court clerk: MagigePlaintiff's counsel: Okoth presentDefendant's counsel: AbsentPlaintiff: PresentDefendant's representative: absent