[2018] KEHC 4849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA – NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NUMBER 241 OF 2015

BETHWEL OMONDI OKAL..........................................PETITIONER

VERSUS

BOARD OF TRUSTEE TELPOSTA PENSION...1ST RESPONDENT

TELKOM KENYA LIMITED................................2ND RESPONDENT

RETIREMENT BENEFIT AUTHORITY............3RD RESPODNENT

Ruling

1. By a Motion on notice dated 30th November, 2017, expressed to be brought under various provisions of the law, Bethwel Allan Omondi Okal, the applicant, sought various orders; contending that the judgment of this Court delivered on 29th November 2017 is ultra vires Article 50 of the Constitution; that the judgment be reversed because relevant statutory or constitutional provision escaped the court’s attention while deciding the petition; that the judgment be reversed because the judge disregarded the binding rule of law principles pursuant to Article 163(7) of the Constitution; that the judgment be reversed because the judge failed to notice some relevant observations made in juridical precedents; fail to notice some other relevant or severable provisions occasioning miscarriage of justice and that the judgment be reviewed because it violated the foundation of the Constitution especially Articles 4(2), 10, 27, 33, 48 and 159(2)(d) and 259(1).

2. The application is supported by the grounds on its face and the affidavit of the applicant sworn on even date and a further affidavit of 4th April 2018. In his affidavits, the applicant deposes that there was a miscarriage of justice; that the rules of natural justice were trampled upon; that the application for review was occasioned because the judgment violated justice; and that the judgment too violated Article 159(2) (e) thus led to a miscarriage of justice.

3. It was further deposed that Article 10 read with Articles 3 and 26 of the Constitution bind judicial officers to protect, promote and defend national values and principles of governance and use them in the discharge of judicial responsibility in conformity with Article 259(1) of the Constitution; and that the Court strangled and suffocated justice hence the need to salvage the petition through review.

4. The 1st respondent filed grounds of opposition dated 2nd February 2018 and filed on 22nd February 2018 opposing the application. The 1st respondent contended that the application is res judicata; and that the only recourse available to the applicant was to seek leave to lodge an appeal out of time; that the application does not raise any ground on which the Court can review its judgment and that the application amounts to a grave abuse of the Court process.

5. The 2nd respondent also filed grounds of opposition dated 9th February 2018 contending that the application is mis conserved, frivolous and vexatious; that it is an abuse of the Court process; that it lacks merit, is bad in law and is fatally defective. It was further contended that the application does not satisfy the principles for review and that it is in comprehensible.

6. During the hearing of the application, the applicant submitted that he was seeking a review of the judgment and relied on the affidavits and grounds on the face of the motion. He also stated that he was relying on rule 32 of the MutungaRules; section 80 of the Civil Procedure Act and rule 45 of the Civil Procedure Rules. Rule 32 of Mutunga Rules is however on stay pending appeal and not review.

7. Bethwel Omondi contended that the Court did not take into account his submissions and relied on the case of communication commission of Kenya v Royal Media Services Limited & 5 Others [2014] on the issue of res judicata and the centrality of Article 10 of the Constitution. He also relied on paragraph 7(1) of the 6th Schedule to the Constitution to the effect that all law existing prior to the 2010 constitution must be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution and the case Benson Riitho Mureithi v JW Wakungu & anotherPetition No 19 of 2004 for the submission that the law must be explicit in its area of operation. The applicant therefore, submitted that the Trust Deed and rules did not attract public participation during formulation.

8. On legitimate expectation the applicant contended that he had a legitimate expectation when he moved the Court and once again relied on paragraphs 364 and 368 in Communication Commission of Kenya v Royal Media Services Limited & 5 others(supra).

9. Mr. Bundotich, learned counsel for the 1st respondent, opposed the application submitting, first; that there is no provision for review of judgments in this Court implying that one can only appeal. Secondly, learned counsel contended that from the nature of the application and the grounds in support thereof, this is not an application for review but an appeal. He therefore submitted that the Court cannot sit on its own judgment. He urged that the application be dismissed.

10. Mrs. Mbaabu, learned counsel for the 2nd respondent, agreed with Mr. Bundotich and submitted that the application and arguments advanced in support thereof do not satisfy grounds for review. According to learned counsel, the applicant is merely faulting the Court’s judgment in which case he ought to have filed an appeal. Counsel asked that the application be dismissed with costs.

11. I have considered this application, the grounds on which it is premised, the supporting affidavits and the grounds in opposition. I have also considered submission by the applicant and those of the respondents. I wish state from the outset that from the nature of the orders sought, the grounds in support and the arguments by the applicant, this is not an application for review. This Court heard a petition by the applicant and in its judgment of 29th November 2017, dismissed that petition with costs. The applicant did not file an appeal but instead filed an application and sought a review of that judgment. He proffered the grounds alluded to together with the affidavits.

12. The Court has wide discretion when it comes to reviewing its judgments, decrees and or orders. The grounds upon which a Court may exercise its review jurisdiction are well known and are contained in section 80 of the Civil Procedure Act (Cap 21) and Order 45(1) of the Civil Procedure Rules. That is a party may apply for review only upon discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason. For the record, section 80 provides that “Any person who considers himself aggrieved—(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

13. The section gives the court a wide discretion and latitude to consider an application for review and if satisfied, may make such orders as it thinks fit for purposes meeting the ends of justice. In the same breath, Order 45 rule 1(b) of the Civil Procedure Rules allows the Court for sufficient reason, to review its judgment, decree or order passed in a suit and make such order thereon as it thinks fit.

14. Courts have long appreciated the latitude the Court has when exercising its review jurisdiction. In Benjoh Amalgamated Ltd and another v Kenya Commercial Bank Ltd (2014)eKLR the Court of Appeal observed that;

“In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason but section 80 gives the High Court greater amplitude for review.” (Emphasis)

15. The review jurisdiction enables the Court to revisit its decision in order to ensure that the decision meets the ends of justice and does not cause injustice or hardship in circumstances that can be avoided or corrected. In the case ofEquity Bank v West Link MBO limited(Civil Application No. 78 of 2011) [2013] eKLR, Musinga JAobserved thatCourts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of the law, to ensure the ends of justice are met.And inBenjoh Amalgamated Ltd and another v Kenya Commercial Bank Ltd(supra) the Court of Appeal stated at that; “[26. ]The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgement of frailties of human nature and sometimes possibility of perversion that may lead to miscarriage of justice. In some jurisdictions, courts have felt the need to cull out such power in order to overcome abuse of process of court or miscarriage of justice.”

16. The principles governing review are clear and applicant seems to be aware of them because he reproduced these principles in his further affidavit sworn on 5th April 2018. Despite this, the totality of the orders sought and the submissions made, rather than show that there is discovery of new and important matter, or that there is mistake or error apparent on the face of the record or further still that there is any other sufficient reason for review, the petitioner went on to attack the merit of the decision which is not a ground for review. If for instance the court disregarded submissions; ignored constitutional principles, or the decision is ultra vires the constitutional principles, those are ground of appeal and not review.

17. Once the Court pronounced itself on the petition, any error of law or fact it may have committed is a ground the applicant can only pursue on appeal but not through a review. This is because the Court cannot sit on its own judgment; it cannot criticize its own decision and cannot determine whether or not its decision is at any rate ultra vires the Constitution or constitutional principles. To that extent the Court is functus officio

18. The fact that grounds for appeal cannot be used for review has been the subject of Court decisions. In the case of National Bank of Kenya Limited v. Ndungu Njau (Civil Appeal No. 211 of 1996), 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 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 ground for review.”(emphasis).

19. In the case ofFrancis Origo & another v. Jacob Kumali Mungala (C.A. Civil Appeal No.149 of 2001), the Court of Appeal again observed that; “…an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction.”

20. A similar view had been taken in the case ofAbasi Belinda v. Frederick Kangwamu and another [1963] E.A. 557 where Bennett J held that “a point which may be a good ground of appeal may not be a good ground for an application for review and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal”.

21. Applying the above principles to the present application, and bearing in mind the submissions made by both sides, I do not think the application meets the threshold for review. In my view, the applicant could only have challenged this court’s judgment in the Court of Appeal which has the jurisdiction to determine the lawfulness or otherwise of the impugned decision. This court having pronounced itself on the matter, cannot using the review jurisdiction to embark on the journey of determining whether the judgment violated constitutional principles; is ultra viresthe Constitution or the law or even failed to meet the petitioner’s legitimate expectation.

22. For the above reasons, the application dated 30th November 2017 is without merit and is hereby dismissed with costs.

Dated Signed and Delivered at Nairobi this 30th Day of July 2018

E C MWITA

JUDGE