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|Case Number:||Civil Case 458 of 2008|
|Parties:||Tausi Assurance Company Limited v Nic Bank Limited|
|Date Delivered:||07 Aug 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Jonathan Bowen Havelock|
|Citation:||Tausi Assurance Company Limited v Nic Bank Limited  eKLR|
|Court Division:||Commercial Tax & Admiralty|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY
CIVIL CASE NO. 458 OF 2008
TAUSI ASSURANCE COMPANY LIMITED ………………. PLAINTIFF
NIC BANK LIMITED ……………………………………….. DEFENDANT
R U L I N G
“1. THAT there is an error apparent on the face of the record necessitating this Application for review.
2. THAT the Plaintiff filed an Application dated 14th October 2013 seeking the following orders:-
3. THAT the said application was heard and a Ruling delivered on 29th May 2014 by Honourable Justice J.B. Havelock allowing the Application and entering judgement for the Plaintiff in the amount of Kshs. 31,564,672.99 together with interest thereon at Court rate from the date of filing suit.
4. THAT there was no prayer for interest in the Application aforesaid nor was the issue of interest canvassed during the hearing of Application aforesaid.
5. THAT under the agreement between the Plaintiff and the Defendant interest on the fixed deposit facility which is the subject matter of this suit was accruing at the rate of 8.5% per Annum.
6. THAT the said rate of 8.5% per annum is admitted by the Plaintiff in paragraph 4 of its Plaint filed in Court.
7. THAT the Defendant is ready and willing to pay the Plaintiff the amount of Kshs. 31,564,672.99 as ordered by the Court on 29th May 2014 as parties await the determination of the issue of interest at trial.
8. THAT substantial loss will result to the Defendant if the orders sought are not granted as the interest ordered is quite substantial and the informal stay of execution Order issued by the Court at the time of delivery of the Ruling is set to lapse on 29th June 2014.
9. THAT the Defendant has demonstrated sufficient reasons for review of the order aforesaid.
10. THAT this application ought to be granted in the interest of Equity and Justice”.
“1. The application as filed is misconceived, bad in law and is not available to the Defendant.
2. the Defendant has in its application and the affidavit in support thereof reaffirmed its admission in the sum of Shs. 31,564,672.99 as ruled in the Ruling dated 29th May, 2014 delivered by the Honourable Havelock J. and there is consequently no defence in respect of this sum or any error on the face of the record in this regard.
3. It is admitted by the Defendant that the Fixed Deposit, which is the subject of the suit herein, matured on 26th November, 2007. The Defendant has further admitted that it had already set off their alleged claim in the sum of Shs. 9,139,726/= on 29th November, 2007. The Defendant has since then withheld the admitted sum of Shs. 31,564,672.99 and has refused or failed to pay the same to the Plaintiff.
4. The Defendant has continued to withhold the admitted amount of Shs. 31,564,672.99 despite the set off as above and the rate of interest stipulated in the matured Deposit subject of the suit is not available to the Defendant.
5. The Plaintiff continues to suffer loss consequent to the Defendant’s refusal and or failure to make payment since the set off was admitted.
6. The award of interest and the rate thereof is entirely in the discretion of this Honourable Court.
7. That there is no error apparent on the face of the record”.
“1. (1) Any person considering himself aggrieved –
(b) by a decree or order from which no appeal is hereby allowed…..”
It was the Plaintiff’s submission that as the Defendant had given Notice of Appeal dated 17th June 2014 and served the same upon the Plaintiff, it was no longer entitled to seek relief under the provisions of Order 45 rule 1. The Plaintiff stressed that the Application before Court was not an application for stay pending hearing and determination of an appeal which would be covered by Order 42 rule 6. There was no corresponding provision under Order 45 of the Civil Procedure Rules, 2010. The Plaintiff emphasised the provisions of ground No. 7 of the Defendant’s application where it had detailed that it was ready and willing to pay to the Plaintiff the said amount of Shs. 31,564,672.99. Despite the Defendant’s assertion in this regard, it had taken no steps to pay the said amount to the Plaintiff.
“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.” (Underlining mine).
In my view the provisions of Order 45 rule 1 are very clear, they read as follows:
“(1) Any person considering himself aggrieved—
(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. (Underlining mine).
“The respondent submits that the applicant has lodged a Notice of Appeal against the decision made by this court on 12th October 2012, and is therefore not entitled to a review. However, I agree with the applicant that, on the authority of the Constitution and the decision in Gucokaniriria Kihato Traders & Farmers Co. Ltd –v-The Attorney General Nairobi High Court Misc. Civil Appl No 1251 of 2002, a Notice of Appeal simply shows an intention to appeal and is not an appeal. I therefore hold that the application for review is properly before me.”
Against this finding, is the decision of the Court of Appeal in the National Bank of Kenya case (supra) referred to this Court by the Plaintiff, in which Kwach, Akiwumi and Pall JJA found as follows:
“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.
In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it”.
Furthermore in another authority cited to Court by the Plaintiff being Ujagar Singh v Runda Coffee Estates Ltd. (1966) EA 263, the Court of Appeal held:
“(i) the word ‘appeal’ in r. 53 of the Eastern Africa Court of Appeal Rules, 1954, is used to describe the procedure started by filing a notice of appeal;”
12. What amounts to an appeal has been defined by the Court of Appeal in the case of Equity Bank Ltd v West Link Mbo Ltd (2013) eKLR as per Musinga JA when he detailed:
“I must go back to the question – ‘what is an appeal?’ The Constitution does not define what an appeal is. The Constitution is the fundamental law of the land and provides a general framework and principles that prescribed the nature, functions and limits of government or other institutions. Acts of Parliament and subsidiary legislation contain the details regarding its operationalization. I must therefore turn to rule 2 (2) of the Court of Appeal Rules which states that:
‘appeal’, in relation to appeals to the Court, includes an intended appeal.
What is ‘an intended appeal’? Rule 75 (1) states as follows:
‘Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in duplicate with the registrar of the superior court.’
The first step in instituting an appeal is the filing of a notice of appeal. Order 42 rule 6 (4) of the Civil Procedure Rules is also relevant in considering what an appeal is. It states that:
‘for the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.’
It follows therefore that as soon as a notice of appeal is lawfully filed, an appeal is deemed to be in existence…..”
This Court is bound to follow the determinations of the Court of Appeal. There would seem to be no doubt that a Notice of Appeal was filed by the Defendant dated 17th June 2014. As a result, the Defendant has brought itself outside the provisions of Order 45 rule 1 of the Civil Procedure Rules, 2010 as well as section 80 of the Civil Procedure Act. As a consequence, on this ground alone, I am unable to review the said Ruling of this Court dated 29th May 2014.
13. Even if I am wrong in that regard, the further complaint of the Defendant was that interest in the admitted Judgement amount was not pleaded in the Application before Court dated 14th October 2013. That may be so but the question of interest was prayed for in paragraph (iii) in the prayers of the Plaint. Section 26 of the Civil Procedure Act reads as follows:
“26. (1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.
(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 12 per cent per annum”.
As found by my learned brother Mabeya J. in the Autolog Kenya case (supra):
“it is clear that under Section 26 aforesaid the award of interest and the rate thereof is in the discretion of the court.”
I agree with learned counsel for the Plaintiff that although the monies placed with the Defendant by the Plaintiff detailed interest at the rate of 8.5% per annum, that Deposit Receipt matured on 26th November 2007 and I find that the interest rate quoted is not pertinent to this case which was filed well after that date. If the Plaintiff had chosen to roll over the said deposit, there is no way of knowing what interest rate the Plaintiff could have received thereon. With this in mind, it seemed to me that the fair rate of interest was the Court rate which, in any event, was pleaded for in the Plaint.
14. The result of all the above is that I find no merit in the Defendant’s Notice of Motion dated 12th June 2014 and the same is dismissed with costs to the Plaintiff.
Dated and delivered at Nairobi this 7th day of August, 2014.
J. B. HAVELOCK