[2000] KEHC 65 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET

Civil Appeal 10 of 1980

FRANCIS ORIGO............................................................. 1st APPELLANT

PETER PANYAKO......................................................... 2nd APPELLANT

AND

JACOB KUMALI MUNGALA...................................... RESPONDENT

RULING

Some 20 years ago, Jacob Kumali Mungala (hereinafter "theRespondent") sued the two Applicants for an order for vacant possession ofland parcel number 35 Chepsaita settlement scheme (hereinafter "the suitland") which is registered in his name.

The trial Magistrate refused the Applicants' claim that they had jointlypurchased the suit land with the Respondent and dismissed theircounterclaim for a declaration that the Respondent was registered as ownerof the suit land as their trustee. The Applicants being dissatisfied with thatfinding appealed to this court. On August 31, 1981 MEAD, J., dismissedtheir appeal. On October 27, 1981, MEAD, J., refused to grant theApplicants a stay of execution pending appeal to the Court of Appeal. OnMarch 4, 1981 the Applicants filed a Notice of Appeal against the judgmentof MEAD, J. On November 31, 1981 the Applicants filed a Notice of appeal against the order of MEAD, J. refusing stay of execution. The Appeals were struck out for delay.

Now, twenty years later, they bring this application for Review on theground, inter alia, that the Applicants were not allowed by the trialMagistrate to call the evidence of a key witness. The Applicants' case is thatif the evidence of the key witness had been called, the court would have come to a different conclusion. According to Mr. Machio, Counsel for the Applicants, this key witness would have testified that he was the original owner of the suit land and that he sold the same to three people - the Respondent and the two Applicants, and that it was their wish that the suit land be registered in the name of the Respondent in trust for all three. The Vendor has sworn an affidavit to this effect which is annexed to the application. Mr. Machio argued that the Applicants, who have continued to occupy portions of the suit land to this day, have a legal interest in the same.

He referred to the cases of Dyer v. Dyer (1788) 2 Cox, Eq. (as 92 (referred to in Pettit v. Pettit [19701 A.C. 777 at p. 814, and Onyango Omoke v. John Qmoke (C.A. No. 10 of 1981) which he said laid down the principle that where contributions have been made, a resulting trust arises. Referring to the case of Bancroft and Ano. v. City Council of Nairobi and Ano. [1971] E.A. 151, Mr. Machio argued that failure to allow akey witness to be called was a sufficient reason to allow a review.

In response to the concern expressed by this Court in bringing this application after 20 years, a delay that the Court regarded as highly inordinate, Mr. Machio explained that the Applicants had been poorly advised, as well as the extra judicial intermeddling by the office of the

Attorney General and the Provincial Administration. In any event, Mr.Machio submitted, that the delay was not unreasonable in the circumstances.

Mr. Momanyi, for the Respondent argued that once the Applicants had chosen to appeal, they could not bring an application for Review. He submitted that for an application of this nature to succeed, there must bediscovery of new evidence which could not have been adduced after theexercise of due diligence, and should not have been within the knowledge ofthe party applying. He argued that the issue of insufficient evidence wasneither raised at the trial, nor at appeal, and the same could not be raisednow. According to him, a delay of 20 years was unreasonable and that thisapplication was, therefore, incompetent, mischievous and intended to defeatthe course of justice. He observed that the Applicants moved the court onlyto stal the Respondent's attempt to execute the orders of this Court.

The issues before this Court are as follows:Can an application for Review be made when an appeal has been preferred?Is this an appropriate application for Review under Order 44 of the CivilProcedure Rules? What is a reasonable time within which an application forReview should be made?

Let us examine these issues in greater detail.

To begin with the first issue, the answer is no. An application forReview is not available to a party who has exercised his right of appeal.Order XLIV Rule 1(1 )(a) of the Civil Procedure Rules is very clear on thisissue. It reads in pertinent part as follows:

"(1) Any person considering himself aggrieved (a) by a decree or order from which ah appeal isallowed, BUT FROM WHICH NO APPEAL HAS BEEN PREFFERED. or

(b)..................................................................... may apply for review of the

3 judgment....................... "

Section 80 of the Civil Procedure Act which deals with reviews has a similarprovision. The Applicant could not file this application having previouslyfiled an appeal against the order sought to be reviewed. It is enough that theapplicant had tiled a notice of appeal in this court, (see Ujagar Singh v.Runda Coffee Estates (1966) EALR 263). It matters not that that appealwas "withdrawn," or struck out. This conclusion is sufficient to dismiss thisapplication.

Let me now consider the other issues:

An application for Review is governed by Order XLIY Rule 1 whichreads as follows:

- "1(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowedbut from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is herebyallowed.

And who from the discovery of new and important matter orevidence which, after the exercise of due diligence, was notwithin his knowledge or could not be produced by him at thetime when the decree was passed or the order made, or onaccount of some mistake or error apparent on the face of therecord, or for any other sufficient reason, desires to obtain aReview of the decree or order, may apply for a review ofjudgment to the court which passed the decree or made theorder without unreasonable delay."Some of the important criteria necessary for invoking the above rule are:1) discovery of new and important matter or evidence which, after due diligence, was not within the Applicant's knowledge or could not beproduced at that time; note strict proof of this allegation is requiredunder the Proviso to Sub-Rule (3); or (2) there is some mistake or error apparent on the face of the record; or (3)"for any other sufficient reason;" and (4) there is no unreasonable delay in making the application.An Applicant must satisfy any one of the three criterionsOutlined above, and he must make his application without unreasonabledelay.

The Applicants before this court claim that they were unable toproduce a key witness at the trial. This is, of course, not 'discovery' of "newand important evidence" as envisaged by the first criterion. The word'discover', according to the Oxford English Dictionary, means "to invent orfind something not known before." The Applicants have not shown thatthey "discovered" a new witness, whose testimony now is likely to affect theCourt's decision. The witness existed, and was known to all the parties. Itis the Court that did not allow his evidence. This may be a ground for"appeal" but not "review." In the circumstances, the Applicants have notsatisfied the first criterion outlined above.

With regard to the second criterion, there is no allegation here of"mistake or error apparent" and so, this brings us to the third, and final,criterion being "any other sufficient reason."

Now, what docs this term "any other sufficient reason" mean, andhow does it apply to the case before this court?

Mr. Machio has argued that the Court's refusal to allow the evidenceof a key witness constituted "sufficient reason" to invoke the review provisions. He did not cite any authorities, leaving the court to research andconsider the following authorities:

In the case of Sardar Mohamed v. Charan Singh Nand Singh [1959)E.A. 793, Farrell, J. applied a broad interpretation to section 80 of the Civil Procedure Act, holding that the section conferred an unfettered right to applyfor review, and an unfettered discretion in the court to make such order as itthinks fit. In that case the 1st Respondent's car broke down while he wasgoing to court. He arrived in court 20 minutes late. His advocate was incourt and informed the Magistrate that he had no instructions. FARREL, J.upheld a Review on this ground. In the present case, the Applicants failedto produce the key witness at the hearing, and were not granted anadjournment. That should have been a ground of appeal to the High Court.It never was, as is evidenced by the Memorandum of Appeal annexed to the documents filed in court. It cannot now be a ground for Review.

In Nairobi City Council v. Thabiti Enterprises. Ltd. (NAI. C.A. No.264 of 1996) Tunoi, JA said that "The current position would, then appearto be that the Court has unfettered discretion to review its own decrees ororders for any sufficient reason." In that case, the Court said that Reviewwould be allowed where there was error on the face of the judgment. InWangechi Kimita v. MutahiWakibiru (Nyeri C.A. 80 of 1985) the Courtmade a determination on a dispute over land having been led to believe thatthe same measured 3. 1 acres. Upon survey, it was discovered that the landactually measured 4. 5 acres. This was sufficient ground for review, thecourt held. The case before this court is very different. It is about anadjournment not being granted by the Trial Magistrate to receive theevidence of a key witness. It may afford the Applicants a good ground ofappeal, but not review.

Finally, can it be said that this application has been brought withoutunreasonable delay? Should litigation not come to an end?

This has been a longstanding matter. It revolves around a largeportion of land. Because of the continuing dispute, the parties have beenunable to settle their affairs. The law is concerned with offering protectionto its subjects to enable them carry on with their lives. Unending litigation does not achieve this object. In Lakhamshi Bros. Ltd. v. Raja and Sons[1966] E.A. 313 at p. 314, SIR CHARLES NEWBOLD, P. said as follows:'There is a principle which is of the VERY GREATESTIMPORTANCE in the administration of justice and thatprinciple is this: IT IS IN THE INTEREST OF ALLPERSONS THAT THERE SHOULD BE AN END TOLITIGATION. This court is now the final Court ofAppeal and when this court delivers its judgment, that Judgment is; so far as the particular proceedings areconcerned, the end of the litigation. It determines inrespect of the parties to the particular proceedings their final legal position, subject, to the limited application of the slip rule (review)."If suits were to go on endlessly, the functions of the Courts would be.rendered useless. Parties to a suit would never know whether their rightshad finally been determined to enable them settle down and continue withtheir lives, instead of being bogged down with endless litigation, andthreatened litigation.

This application has been brought twenty years after the judgment and ordersought to be reviewed were made. It does not only offend the principle thatthere must be an end to litigation but it is also brought after inordinate and unreasonable delay. By no stretch of imagination can a 20 year delay beregarded as "reasonable," considering that the "reasons" for delay were poorlegal advise, and extra judicial interference. Time is now propitious to putthis litigation to a permanent end, and not to vex the Respondent forever.

Having considered the typed proceedings in the lower Court, it is clearto me that both the Courts - the lower Court and the High Court found thateven if the Applicants had established their case, the same would have failedfor non-compliance with a statutory requirement being section 6 of the LandControl Act, which made the transaction void. Apparently, the parties hadnot complied with the mandatory provisions of that Act and the absence ofthe key witness notwithstanding, the Applicants would not have succeeded,

The issue is whether there can be a Review of such a finding. AJudge's conclusion on a point of law cannot be a subject for review. In theLakhamshi Bros case supra and in Vallabhdas Karsandas Raniga v.Mansukhlal Jivraj and Others [1965] E.A. 700 the Courts held that therecannot be review where the court is asked to overturn its own judgment in -the same proceedings. Similarly, in the cases of Abasi Balinda v. FredrickKangwanu (1963) E.A. 557, and National Bank of Kenya Ltd. v. Ndung'uNjau (C.A. No. 211 of 1996) the Courts held that an erroneous conclusion oflaw, or evidence, is no ground for a review, though it may be a good groundfor appeal. In this application, it cannot be urged to consider whether thefinding that the transaction was void was proper. That would amount toasking this court to question its previous judgment in the same matter and .that would amount to sitting on appeal of its own decision.

Accordingly, for all the reasons stated above, I have come to theconclusion that there is absolutely no basis to this application and the sameis dismissed with costs to the Respondent.

Dated and delivered at NAIROBI this 20th day of November, 2000.

ALNASHIR VISRAM

COMMISSIONER OF ASSIZE