[2000] KEHC 61 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Civil Case 10 of 1980

FRANCIS ORIGO...............................................1st PLAINTIFF

PETER PANYAKO...........................................2nd PLAINTIFF

VERSUS

JACOB KUMALI MUNGALA............................... DEFENDANT

RULING

On 12th May, 2000 the Resident Judge Eldoret, Lady Justice Nambuye wrote to me thus on the above case: -

"There is an application for Review pending in theabove file. The Resident Judge has handled mattersrelating to the same issue previously. It is the feelingof the current counsel for the applicants that sincethey are seeking to upset the order concluding theappeal, justice demands that the matter be handledby two Judges who have not previously handled thematter or related matters.

I have caused proceedings in the file and those ofthe related files to be typed for Your Lordship'sperusal and directions please.

All the related records plus the subject file aresent herewith by runner for Your Lordship'sdirections please."

The related records referred to in the Resident Judge's letter are: -

(a) Eldoret RM Civil Case No. 920/1979

(b) Eldoret HCCC No. 215/1999 (O.S)

(c) Eldoret Civil Appeal No. 10/80

(d) Eldoret Misc. Civil Application No. 12/1983.

Thus, coupled with the current file under reference (Eld. HCCNo. 10/1980), there are five voluminous files in all. They, immediately give thebest testimony of the long history of this matter. The dispute between theparties, however, remains essentially one, that is to say over land. It is, in myopinion, a disquieting scenario in the administration of justice and one that mustnot be allowed to gain root any further in this case or any other case.

Consequential upon the Resident Judge's letter to me, I, through myDeputy Registrar, issued Notices to the Advocates for the parties to appearbefore me and address me on the reference and, indeed, the history of thematter.

On 15th August, 2000, I had the advantage of full addresses by Advocatesfor both sides, Mr. Machio and Mr. Momanyi. The following issues emergedtherefrom: -

(a) Case started in 1979 in the Resident Magistrate's Court,

(b) It was a case over ownership of land.

(c) After decision of the Resident Magistrate, an appeal wasfiled in the High Court, Eldoret.

(d) Mead, J., then High Court Judge, Eldoret, heard the appealand delivered his judgment in 1981. He dismissed theappeal.

(e) Attempts were then made to file second appeal in the Courtof Appeal against the decision of Mead, J.

(f) The attempts were unsuccessful and, consequently, theCourt of Appeal never heard the appeal.

(g) Subsequently, eviction orders were sought.

(h) At some stage, office of the Attorney-General and ProvincialAdministration, needlessly in my view, sought to intervene.

Eventually, a motion was filed in the High Court, Eldoret in High CourtCivil Appeal No. 10/1980. The motion was seeking to Review the 1981 judgmentof Mead, J. on appeal. The motion asked that the Review be heard by two Judges who have not previously handled the case. What is before me, therefore, is the Motion aforementioned. Even then, only one prayer in the Motion is before me. That is the prayer for two Judges who have not previously handled the case to hear the application for Review of Mead, J's 1981 appeal judgment.

Mr. Momanyi for the Respondent very strongly complained about thewhole matter and, more particularly, the Motion now before me. He said theapplicants have always frustrated execution of the judgment of the ResidentMagistrate, Eldoret and Mead, J's appeal judgment of 1981. He said the matterhad even gone to the Court of Appeal, though, as I said earlier, the appeal wasnot heard by the Court of Appeal for reasons which were given by both counseland are on record. Mr. Momanyi criticized previous attempts by the ProvincialAdministration to intervene in the matter. He said the present review applicationis part of the continued scheme to frustrate execution of judgments obtained byhis clients over ten years ago. He concluded that this application is incompetentand urged me not to set up a bench of two Judges or at all to hear it.

On the other hand, Mr. Machio, for the applicants, urged me, equallystrongly, to set up a bench of two Judges to hear the Review application. Hestressed that some vital witnesses did not give evidence when the case washeard in 1979 before Resident Magistrate or at first appeal in 1985 in the HighCourt Eldoret.

I am not hearing the Review application. I will, therefore, resist thetemptation to go into the merits. I must stress however, that litigations musthave their final end. They cannot proceed forever, going back and forth in courtin one form of application or another. A party who is successful in civil litigationmust realize the benefits of judgment in his or her favour unless, of course, he orshe is prevented from doing so through due process of law.

I want to stress, also, that once a matter is in court, it must be only thelegitimate parties in court to pursue it. Third party intervention can only beentertained through legitimate parameters of the law. Anything short of that willnot advance the course of justice and will weaken the Rule of Law in thiscountry.

I sympathize with the views expressed by Mr. Momanyi. But I want to seean end to this endless saga of litigation. I want to give every party a chance tofeel that all legitimate avenues of justice were explored. I will therefore, movethe matter forward for hearing of the Review application which must be donewith speed. Mr. Momanyi remains at liberty to take any preliminary objection onany issues that he may wish to take. It is entirely for him to decide on this atthe time of the hearing.

A review should, normally, under the relevant Rules, go before the Judgewhose judgment or order is to be reviewed. However, where such a Judge is nolonger attached to the Court the review may be heard by any other Judgeattached to the court at the time it is called up for hearing. Here, however,Mead, J. whose appeal judgment is sought to be reviewed is no longer attachedto the court. Accordingly, the review may be heard by any other Judge who isattached to the court at the time of the hearing of the Review application.

It is noted, also, that the Rules (Order XLIV R 1 (b) require application forReview to be made without unreasonable delay. Yet here, the judgment to bereviewed was delivered over 10 years ago. The Judge to hear the Review application will, of course, consider all these matters if taken up before him orher by the parties.

I was asked by Mr. Machio for two Judges to hear the Review application.Section 79 (C) of the Civil Procedure Act Cap. 21 gives me power to appoint twoor more Judges to hear an appeal from a subordinate court where, in anyparticular case, I consider it appropriate to do so. But what is before me now isnot an appeal but an application for Review. I hold the view therefore thatSection 79 (C) of the Act is inapplicable.

Section 80 of the Act provides for Review. But I find no provisionequivalent to 79 (C) giving me powers to appoint two or more Judges to hear aReview application. Therefore, I hold the view that Section 80 of the Act,thought it provides for Review, does not empower me to appoint two or moreJudges to hear a Review application.

In the Rules, Review is dealt with under Order XLIV. The provision givingthe Chief Justice power to appoint or designate a Judge to hear a Review is inRule 4 (2). But that Rule applies in circumstances different from what is in theapplication before. I cannot, therefore invoke the said Rule 4 (2).

Yet Rules 5 (1) and (2) clearly envisage a situation where a Review isheard by more than one Judge. I could therefore, under appropriatecircumstances, in my inherent powers, appoint more than one Judge to hear aReview application.

I now turn to the matter before me. Despite its delay and long history, Ifind, for purposes of this Review application, no circumstances to warrant abench of two or more Judges to hear it. I direct, therefore, that the Reviewapplication will be heard by one Judge or Commissioner of Assize to beappointed by me in due course.

I now call upon the parties to give me their date proposals, which mustfall within the month of October, 2000 to avoid any further delays in this matter.

Dated at Nairobi this 12th day of September, 2000.

B. CHUNGA

………………………………

CHIEF JUSTICE