[2016] KEHC 6560 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 103 OF 2012

EASTERN PRODUCE (K) LIMITED…………………………...APPELLANT

VERSUS

PHILISTER ODERO OCHIENG………………....……………..RESPONDENT

RULING

By a Notice of Motion dated 17th December 2014, the Appellant/Applicant mainly prays for a review and/or setting aside of the decision of this court in a ruling delivered on 21st November, 2014. The application was filed under Section 1A, 1B, 3, 3A, 63(e) and 80of the Civil Procedure Act; Order 45 rule I and 51 rule I of the Civil Procedure Rules and all other enabling provisions of the law.

The application is premised on grounds stated on its face which can be summarized as follows;

That there is an error apparent on the face of the record.

That the consent was not meant to consolidate the hearing of the suits to be stayed as captured by the court but to have the application for validation of the twelve suits heard and determined by one magistrate to ensure uniformity in their outcome.

That the court misconstrued the consent in its ruling of 21st November, 2014 as there was no consent regarding the consolidation of the suit for purposes of hearing.

That the court in determining the application dated 24th October, 2012 applied the requirements for grant of stay of execution where there is a decree whereas the application was for stay of proceedings and there was no decree arising from the subordinate court.

That this court has the power to grant the orders sought to correct the errors complained of and no party would be prejudiced if the orders were issued.

That it is in the best interest of justice that the application be allowed.

That this court is a court of record and hence the need to correct the error for purposes of proper clear records.

The application is supported by the undated affidavit sworn by Mr. Alfred King’oina Nyairo, learned counsel for the applicant filed in court on 17th December 2014. In the affidavit, Mr Nyairo reiterated the grounds anchoring the motion and pointed out the errors complained of in the ruling delivered by my sister Hon. Justice G.W. Ngenye-Macharia on 21st November 2014. He further deposed that the court misconstrued the import of the consent filed by the parties and misapprehended the law applicable to applications for stay of proceedings leading to an erroneous decision. At paragraph 9 of the affidavit, counsel deposed that “had the court interpreted the consent with regard to the applications that were in issue in Kapsabet court, then it would certainly have arrived at a different and correct decision”.

Lastly, the deponent asserted that there was another error made by the court which in his view required correction. At paragraph 17 and 18 of his affidavit, Mr. Nyairo deposed that due to her misinterpretation of the consent, the Hon. Judge failed to uphold her earlier ruling in HCCA No. 115 of 2012 in which she stayed proceedings in several suits filed at the Kapsabet Principal Magistrate’s Court pending the determination of an appeal. The ruling in that case is annexed to the affidavit and marked as exhibit ”AKN3”. According to the deponent, this amounted to another error on the face of the record.

The application is opposed through the replying affidavit sworn on 27th February 2015 by the respondent’s learned counsel Mr. Zephania K. Yego. The respondent denied that there was any error on the face of the ruling in question and that the proper avenue for the appellant was to appeal against the ruling since the consent was not the only issue the judge considered in arriving at her decision. Counsel further deposed that the application was made in bad faith for the sole purpose of delaying the expeditious disposal of the twelve cases pending hearing in the lower court and that this is why the appellant is apparently not keen on prosecuting its appeal. For the above reasons, the respondent urged this court to dismiss the application.

The application was canvassed by way of written submissions. The applicant filed its submissions on 8th April 2015 while those of the respondent were filed on 5th May, 2015.

I have considered the application, the affidavits and the submissions filed by the parties as well as the authorities cited by the applicant namely Hussein V Kakiiza & Another [1995 – 98] 2EA 1117 (SCU) and Orerro V Seko [1984] KLR 238which sets out the grounds upon which review can be sought. I have also read the ruling delivered by this court on 21st November, 2014.

I find that the application is mainly predicated upon Order 45 of the Civil Procedure Rules (the Rules) which provides as follows:

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 a review of judgment to the court which passed the decree or made the order without unreasonable delay……”

From the above provision of the law, it is clear that the court is empowered to review its own judgment or order if the applicant establishes any one of the following three main grounds;

That there is discovery of new and important evidence which was not available to the applicant when the judgment or order was passed despite due diligence;

That there is a mistake or error apparent on the face of the record;

That sufficient reasons exists to warrant the review sought.

I think it is important to note at this juncture that though ideally applications for review should be heard by the judge who made the order or passed the decree sought to be reviewed, where the judge is no longer attached to the court in which the application is filed, under Order 45 rule 2 of the Rules, the application can be heard and determined by any other judge attached to the said court. In the premises, I agree with the appellant that though the orders sought to be reviewed were made by Hon. Justice G.W. Ngenye-Macharia who is no longer attached to this court, I have power to entertain and determine the instant application.

Turning now to the merits of the application, the applicant has sought review of Hon. Justice Ngenye’s ruling of 21st November 2014 on one ground only: that there is an error apparent on the face of the record. The question that immediately springs to mind is this - what constitutes a mistake or error apparent on the face of the record?

Sir Dinshah Fardunj Mulla in his book titled Mulla, The Code of Civil Procedure,18th Edition, Reprint 2012 at page 3665 has answered this question in the following terms;

“An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review……error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The scope of the power of review as envisaged under 0 47 , r 1, Code of Civil Procedure(India’s equivalent of our Order 45 of the Rules)is very limited and the review must be confined strictly only to the errors apparent on the face of the record. A re- appraisal of the evidence on the record for finding out the error would amount to an exercise of appellate jurisdiction, which is not permissible by the statute. …”

The term has also received judicial interpretation in a number of court decisions. In Nyamongo and Nyamongo Advocates V Kogo (2001) I EA 173, the Court of Appeal expressed itself as follows:

“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 a real distinction between a mere erroneous decision and an error apparent on the face of the 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 a 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 in National Bank of Kenya Limited V Ndungu Njau Civil Appeal No. 211 of 1996 (1997) eKLR, the Court of Appeal stated thus;

“A review may be granted wherever 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”.

Having established what amounts to a mistake or error apparent on the face of the record, the issue that arises for this court’s determination is whether the applicant has demonstrated that there is an error apparent on the court’s ruling of 21st November 2014 that would warrant a review of the court’s decision. From the grounds supporting the application and the depositions in the supporting affidavit, it is clear that the applicant’s position is that the learned judge read and misinterpreted the consent filed by the parties in the lower court. According to the applicant, the consent was only limited to consolidation of the suits for purposes of determining the application (originating summons) for leave to extend time within which the twelve suits could be filed or to validate the same but the Hon. Judge misconstrued the consent to mean that it sought to consolidate the suits for hearing using Kapsabet PMCC NO. 97 of 2011 as a test suit; that this misinterpretation of the consent led the Hon. Judge to arrive at an erroneous decision.

I think it is important at this juncture to reproduce the relevant part of the consent that is at the heart of the instant application for review.

The said consent stated interalia as follows:-

“AND WHEREAS the parties propose to stay further proceedings of the cases pending the hearing and determination of the said Originating Summons in the cases cited in the schedule below;-

BY CONSENT IT IS AGREED THAT:

The cases cited in the schedule herein below be consolidated under the instant case and to be heard before court number one (1) on 14th August, 2012 and the instant case to be the test suit for purpose of only determining the seeking originating summons filed in the cases appearing in the schedule below the orders aforementioned herein above,

The replies filed herein in response to the originating summons, submissions by the counsel and/or arguments in respect of the said originating summons shall apply to all the cases cited herein below and the determination and/or the ruling and/or decision of the court in this case shall apply to all the cases aforesaid ad shall be binding for purposes of determining the originating summons aforesaid which are similar and substantially the same as the relief sought is the same,

There be stay of further proceedings of the cases in the schedule pending the hearing and determination of the said originating summons in the cases cited in the schedule below.

That the costs be in cause…….”

Looking at the consent it is my considered view that the errors pointed out by the applicant go to the reasoning of the Hon. Judge in her analysis of the terms of the consent filed by the parties and in her conclusion regarding what it sought to achieve. What the applicant is asking this court to do is to interpret the consent afresh and make a determination whether the Hon. Judge’s interpretation was right or wrong and whether the interpretation given by the appellant was the correct one. Clearly, even if there was a mistake or error in the interpretation of the consent, such an error cannot be self evident as it would require a fresh interpretation of the consent. And even if the court upon such interpretation were to have a different view of the import of the consent, as held in the National Bank of Kenya Limited V Ndungu Njau’scase, this would not be a sufficient ground for review.

The applicant also faults the ruling on grounds that the Hon. Judge misapprehended the law applicable to applications for stay of proceedings which was the application before the court and applied Order 42of theCivil Procedure Rules which governs applications for stay of execution of decrees pending an appeal. The applicant was in effect attacking the legality of the court’s decision by alleging that it was based on an error of law. I have no doubt in my mind that erroneous decisions based on misapprehension of the law fall outside the parameters of review and can only be corrected on appeal.

In view of the foregoing, I have come to the conclusion that the errors on which the instant application is premised do not amount to errors on the face of the record. In my opinion, if the judge erred in her appreciation of the material placed before her by the parties in arriving at her decision or in her application of the law, these are errors which can only be corrected on appeal but not by way of review

In any event, the Hon. Judge did not base her decision only on her interpretation of the consent filed by the parties in the lower court. The Hon. Judge was also guided by the overriding objective of the Civil Procedure Act and the Rules as stipulated in Section 1A and 1Bof theCivil Procedure Act and in the exercise of her discretion dismissed the applicant’s application for lack of merit. A decision made in the exercise of a court’s discretion cannot be subject to review by the same court.

In the premises, I wholly agree with the respondent’s submissions that as the applicant was obviously aggrieved by the decision of the court, the correct approach would have been to appeal against the ruling of the Hon. Judge instead of seeking its review. If this court were to accept the applicant’s invitation to review the aforesaid ruling in the manner proposed in the application, it would be sitting on appeal on a decision of a judge of concurrent jurisdiction which is not permissible in law.

For the foregoing reasons, I am satisfied that the application dated 17th December 2014 is devoid of any merit. The same is consequently dismissed with costs to the respondent.

It is so ordered.

C. W. GITHUA

JUDGE

DATED, SIGNEDand DELIVEREDatELDORETthis 28th day of January, 2016

In the presence of:

Miss Tigoi holding brief for Mrs. Khayo for the Appellant/Applicant

No appearance for the Respondent

Mr. Lesinge –Court clerk