[2019] KEHC 3865 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 89 OF 2017

FELISTER WANJIRU KIERU........APPELLANT

VERSUS

RACHAEL GATHONI KIERU....RESPONDENT

(Being an appeal from the Ruling of the Hon. C. A. Muchoki (PM) in Thika Delivered on 19th February 2016 CMCC No. 514 of 2004)

J U D G M E N T

1. This appeal emanates from the ruling delivered by Muchoki RM on an application seeking review of the judgment read by Mutuku PM on 20th August 2014 in Thika Succession Cause No. 514of 2004.

2. The Appellant raises three grounds of appeal asserting that the learned magistrate erred in law and in fact:

i. In finding that there was no error on the face of the record

ii. By failing (erroneously typed as finding) to properly evaluate the decision sought to be reviewed

iii. By failing to evaluate the applicants submissions in supporting the application.

3. Directions were given on 18th September 2018 that the appeal be canvassed by way of submissions. Although the Respondent did not attend the court on that date, she was represented by counsel on the subsequent date, and was given time within which to file her submissions in response to the appellant’s. It seems that the Respondent did not file any submissions.

4. The key plank in the submissions of the appellant was that lower court failed to take note of the self evident error in the judgment sought to be reviewed, to the extent that it stated that one asset, namely Ngena/Kahunguini/130 measured five and not seven acres, and that the resultant distribution was skewed in favor of the Respondent, while awarding lesser acreage to the Appellant. Pointing to proceedings and the judgment of the court the Appellant asserted that unless the error was corrected, the distribution could not be effected as the parcel No. Ngenda/Kahunguini/130 measure 5 and not 7 acres as stated in the judgment of the lower court.

5. The duty of the first appellate court is to re-evaluate the evidence or material placed before the court appealed from and draw its own conclusions. Ordinarily, the court will not interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the court below is shown to have acted on wrong principles in reaching its findings. See Peters v Sunday Post Limited (1958) EA 424; Sele and Another v Associated Motor Bot Co. Ltd and Others (1968) EA 123; Ephantus Mwangi Wambugu [1982 – 1988] IKAR 278.

6. The court has considered the submissions made on this appeal by the appellant and the record of the court below. The summons which resulted in the ruling appealed from was one brought under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:

“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”.

7. The Appellant’s complaint is that there was no dispute that the asset Ngenda/Kahuguini/130 measured 5 acres only and therefore the final order in the judgment of 20/8/14 was erroneous in so far as it distributed a total of 7 acres between the parties. I have looked at the entire record of proceedings and the said judgment. There was no dispute whatsoever that the asset in question measured only 5 acres. In rejecting the subsequent review application the trial court apparently invoked the functus officio principle as a bar to its engagement with the matters raised in the review application. The functus officio principle has several exceptions including where an error is manifest on the record.

8. In Telkom Kenya Limited v John Ochanda [suing on his own behalf and on behalf of 996 employees of Telkom Kenya Limited] (2014) e KLR the court considered the principle of functus, officio and exceptions thereto. The court observed that:

“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of CHANDLER vs ALBERTA ASSOCIATION OF ARCHITECTS [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);

“The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co.,(1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. Where there had been a slip in drawing it up, and,

2. Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”

9. The Court of Appeal further asserted that:

“The Supreme Court in RAILA ODINGA v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law”(2005) 122 SALJ 832 in which the learned author stated;

...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in JERSEY EVENING POST LTD VS AI THANI [2002] JLR 542 at 550, also cited and applied by the Supreme Court;

“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”

10. In The Telkom Kenya case, the court recognized that after the rendering of the final judgment of the court, the court’s only recourse would have been to review the judgment and having refused to do so, be rendered functus officio.The power of the court to review a judgment for a mistake or error on the face of the record is one of the exceptions to the functus officio principle and is embedded in Order 45 Rule 1 (1) of the CPR.

11. As to the circumstances in which an application for review can be granted there have been many pronouncements by superior courts.

In the judgment of Okwengu JA in Associated Insurance Brokers v Kennidia Assurance Co. Ltd [2018] e KLR the Court of Appeal stated that:

[10]It is clear that Order 45 rule 1(1) of the Civil Procedure Rulesprovides that a mistake or error apparent on the face of the record is one of the grounds upon which an application for review of a decree or order can be granted. InNational Bank of Kenya Ltdv Ndungu Njau [1997] eKLR,this Court had this to say regarding a review arising from a mistake or error apparent on the face of the record:

“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.”

[11]In Nyamogo and Nyamogo Advocates v. Kogo [2001]1 E. A. 173 this Court further explained an error apparent on the face of the record as follows:

“An error apparent on the face of the record cannot be defined precisely and 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, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

12. The error in this case is patent and manifest. The total acreage of the land parcel No. Ngenda/Kahuguini/130 was admittedly 5 acres. The distribution in the judgment of 20/8/14 purporting that the total acreage was 7 acres in an obvious error. Besides, the Appellant readily admits that her share of the asset was only two acres. By way of deduction, the share due to the Respondent could only be 3 acres. It is clear from a reading of the judgment that the trial court considered that while the Appellant had six children, the Respondent had nine children and the fact that the Respondent’s matrimonial home was built upon Ngenda Kahuguini/130. The appellant’s home, on the other hand was built upon another asset viz Ngenda Kahuguini/879 which measured only 1. 1 acre, while a son of the Respondent had settled on the deceased’s asset Ngenda/Kahuguini 869 which measured 2 acres. There was no indication in that judgment that the trial court intended to award the entire asset Ngenda/Kahuguini/130 to the Respondent’s house exclusively.

13. The trial court in its ruling on the review application was swayed by the erroneous merit arguments raised by the Respondent in the lower court as to the nature of interest a widow was entitled to under the Law of Succession Act, and in turn, perceived the application as one on merit rather than one brought to correct on error. Besides, the judgment of the lower court though not directly referring to houses in the ultimate distribution, left no doubt that the distribution was made in accordance with Section 40 of the Law of Succession Act since the deceased had two wives, therefore two houses.

14. The review application related to only one asset and was not calling for redistribution of the entire estate, but rather the correction of an error in the total acreage of the one asset. The asset was only 5 acres in size thus, the distribution purporting that the total acreage was 7 acres was manifestly erroneous. In my considered view, the court below did not address itself correctly to the matter before it and was wrongly persuaded that the review application was calling for redistribution.

15. Had the said court properly considered the proceedings leading to the judgment seeking to be reviewed, and addressed itself to the provisions of Order 45 Rule 1 of the Civil Procedure Rules, it would have concluded that there was indeed an error on the face of the record, which made it impossible for any of the beneficiaries of the estate to execute the confirmed grant.

16. This court is satisfied that the instant appeal has merit and will therefore set aside the ruling delivered on 19th February 2016 dismissing the review application, and substitute therefore, an order allowing the review application dated 24th June 2016 in terms of prayer (a). In view of the nature of the proceedings, each party will bear its own costs in respect of the said application and this appeal.

DELIVERED AND SIGNED AT KIAMBU THIS 3RD DAY OF OCTOBER 2019

………………………………

C. MEOLI

JUDGE

In the presence of:

Mr. Gikenye holding brief for Ngaruiya for the Appellant

Respondent – Absent

Court Assistant - Kevin