[2022] KEHC 10901 (KLR)

Eastern Produce (K) Limited (Savani Tea Estate) v Maru (Civil Appeal 38 of 2014) [2022] KEHC 10901 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10901 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 38 of 2014

RN Nyakundi, J

May 17, 2022

Between

Eastern Produce (K) Limited (Savani Tea Estate)

Appellant

and

Francis Asuna Maru

Respondent

(Being Judgment arising from Judgment in Kapsabet Principal Magistrate’s Court Civil Case No.108 of 2011 by Hon. P. Mosiria (PM))

Ruling

1. What is before the court is a Notice of motion application by the applicant promised to be brought under Order 51 Rule 1 and order 45 Rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3, 3A & 80 of the Civil Procedure Act. The applicant seeks, in a nutshell, orders that;1. This Honourable court be pleased to review its judgment delivered on 3rd December 2018 and to order rectification of the error apparent on the face of the record.2. The application is based on the grounds therein and the affidavit in support of said application.

2. It is the applicant’s case that the judgment delivered by the court on 3rd December 2018 is erroneous on the face of the record. further that the judgment was delivered in the absence of the parties. The court made an order allowing the appeal at paragraph 18 and then made an order dismissing the appeal at paragraph 20 which is an error. The applicant cited the case of Kenya Orient Insurance v Zachary Nyambane Omwagwa (2021) eKLR and National Bank of Kenya Limited v Pastori Tumwebaze (2005) UGSC 1. He also cited the case of Re estate of Oliokampai Sarapae Sanguti (Deceased) (2019) eKLR and submitted that dismissing the appeal in paragraph 20 was an error which they humbly urge the court to rectify.

3. There was no response by the respondents, and therefore the application is unopposed.

4. Upon perusal of the application and the submissions therein, I have identified the following issues for determination;

Whether the court should review its decision of 3rd December 2018. 5. Section 80 Civil Procedure Act provides as follows: -80. 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 judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

6. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -“45 Rule 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”

7. The application for review is premised on the error on the face of the record of the judgment. a perusal of the judgment at paragraph 18 reveals that the learned judge stated as follows;‘For the above reason alone, this appeal succeeds. It would ne academic to venture into the question of negligence for now.

8. The same judgment at paragraph 20 states;“the appeal is hereby dismissed with costs at both the lower court and the high court to the appellant”

9. In Chandrakhant Joshibhai Patel v- R [2004] TLR, 218 it was held that an error stated to be apparent on the face of the record:“...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions."The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted:“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 a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”The principles on this ground was also articulated In Re Estate of Oliokampai Sarapae Sanguti (Deceased) (2019) eKLR cited this case to differentiate a mere erroneous decision and an error apparent on the face of record.“…In Nyamogo & Nyamogo v Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” (emphasis mine)”

10. A reading of the judgment has led me to conclude that indeed paragraph 20 is an error on the face of the record and the application succeeds. The review succeeds with costs awarded to the appellant.

DELIVERED, SIGNED AND DATED AT ELDORET VIA EMAIL THIS 17TH DAY OF MAY 2022. R. NYAKUNDIJUDGE