[2017] KEHC 9169 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 185 OF 2009

JAIRO ALELA ABUNERI………………………PLAINTIFF/RESPONDENT

VERSUS

FILISTER OMUKHENJE MUKUYWA…….1ST DEFENDANT/APPLICANT

DAMARI ASWANI INGOLO………………2ND DEFENDANT/APPLICANT

R U L I N G

Introduction

1. The application before me is the Notice of Motion dated 13. 03. 2017 which is expressed to be brought under order 45 rules 1,2 and 3 of the Civil Procedure Rules. The same is filed by M/S M/. Kiveu Advocate on behalf of the 2nd Defendant/applicant seeking orders;-

1. THAT this honourable court be pleased to stay execution of the judgment herein pending the hearing and determination of this application.

2. THAT this honourable court be pleased to review and set aside judgment herein.

3. THAT this case be heard denovo.

4. THAT the costs of this application be provided for.

2. The application is premised on grounds that the court which heard and determined the case had no jurisdiction to do so; that there is an error apparent on the face of the record and finally, that this being a land issue it will serve the cause (sic) of justice if the judgment is reviewed. The applicant Damaris Aswani Ingolo swore a supporting affidavit in which she reiterated the grounds on the face of the application and averred that as at the time of hearing and determining this case there was already in place the Environment and Land Court established under Article162 (2)(b) of the Constitution and that it was only that court which had the jurisdiction to hear and determine the case herein. The deponent also referred to the Environment and Land Court Act which is “An Act of Parliament to give effect to Article 162(2)(b) of the Constitution to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of and title to land……….” The applicant prays for the orders.

Response to the Application

3. The application is opposed vide the replying affidavit sworn by the respondent herein on 22. 05. 2017. The respondent avers that the application is defective, misconceived, incompetent, frivolous, vexatious and is an afterthought, is lacking in merit, is an abuse of the court process and it is being employed by the applicant as a delaying tactic in this matter. The respondent prays that the application be dismissed with costs to himself.

Background

4. This case was commenced by way of an originating summons dated 08. 12. 2009 and filed in court on the same day. The court was asked to determine two questions: the ownership of title No. Butsotso/Indagalasia/1133 claimed by the plaintiff and secondly, the legality and validity of the transfer of land title No. Butsotso/Indangalasia/1133 by the 1st defendant to the 2nd defendant. The plaintiff then sought a number of other orders inter alia a declaration that the defendants’ right over the whole of the title No. Butsotso/ Indangalasia/1133 got extinguished by adverse possession.

5. The case was fully heard by Hon Mr. Justice S. J. Chitembwe and on 23. 10. 2013 the learned judge delivered his judgment in favour of the plaintiff now respondent. To have the matter move forward, Mr. Justice Chitembwe authorized the Deputy Registrar of this Honourable Court to sign all the relevant documents to ensure that the suit land is registered in the name of the plaintiff.

6. After the judgment was delivered, on 23. 10. 2013, the applicant has done the following;-

Filed notice of Appeal dated 15. 11. 2013

On 21. 02. 2014, filed case number Kisumu court of appeal No. 7 of 2014 seeking leave of the Court of Appeal to file appeal out of time. The case was dismissed with costs to the respondent.

On 04. 06. 2014, filed another case before the Court of Appeal in Kisumu being case No. 40 of 2014 seeking to reinstate Kisumu Court of Appeal case No. 7 of 2014. The same was dismissed on 01. 04. 2014 for non- attendance.

On 28. 11. 2015 by consent of the parties the respondent’s costs at the Court of Appeal were taxed at KShs.50,000/=. The said costs are allegedly not paid todate.

The Law

7. The provisions of the law applicable to this application are Section 80 of the Civil Procedure Act, (CPA) Cap 21 of the laws of Kenya and order 45 of the Civil Procedure Rules, 2010. Section 80 of the CPA 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 judgment to the court which passed the decree or made the order and the court may make such order thereon as it thinks fit.”

8. On the other hand, order 45 rules 1, 2, and 3 of the CPR 2010 provide as follows:

“(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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.

2. (1) An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.

(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.

(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.

3. (1) where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.

(2)Where the court is of opinion that the application for review should be granted, it shall grant the same:

Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.

9. Thus, an applicant seeking review of any order/decree or judgment must demonstrate to the court that though an appeal is allowed, no appeal has been preferred, or that though an appeal is not allowed, he has discovered new and important matter or evidence which after 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 that on account of some mistake or error apparent on the face of the application, a review ought to be made, or that there is some other sufficient cause to warrant the review sought by the applicant.

Submissions

10. Counsel made oral submissions in support of their contending views. The position taken by the applicant is that the court as constituted during the hearing and determination of this matter was bereft of jurisdiction to do so by dint of the provisions of Article 162(2)(b) of the Constitution and the relevant provisions of the Environment and Land Court Act 2011. Further that the impugned judgment did not specify how the applicant’s parcel of land had passed to the respondent. Finally that the decision rendered on 23. 10. 2013 has caused miscarriage of justice to the applicant.

11. Counsel for the respondent contended that since the applicant submitted herself to the appeal process, she is barred from seeking a review. Secondly that since there are two applicants, Damaris Aswani Ingolo cannot alone purport to bring this application without satisfying this court that she is doing so with the authority and on the behalf of herself and that of the first applicant, Fillister Omukhonje Mukuywa. Thirdly, that having fully participated in the trial and never having raised the issue of jurisdiction of the court, she is barred from raising the issue at this stage. Finally, counsel submitted that even if this application fell under Order 45, rule 1(b) of the CPR, the issue of jurisdiction cannot be said to be a new and important matter which came up after judgment was passed, because the applicant was aware of the constitutional and statutory provisions relating to the matter in hand.

Analysis and Determination

12. After a careful analysis and consideration of the application, I find and hold that the applicant’s instant application lacks merit. First and foremost, this application falls under order 45 Rules 1(1) (a) of the CPR. An appeal is allowed and there is clear evidence from the background information that the applicant chose to appeal the judgment of 23. 10. 2013 to the Court of Appeal though the intended appeal never saw the light of day after two applications filed before the Court of Appeal were both dismissed with costs to the respondent.

13. It is also clear as submitted by respondent’s counsel that the issue which forms the fulcrum of the applicant’s application, namely alleged lack of jurisdiction of this court is not anything new. That the issue was all the time through the trial before the applicant’s eyes and that the applicant who was represented by counsel never raised the issue during the trial.

14. Counsel for the respondent also submitted and in my considered view quite correctly that the applicant is guilty of inordinate delay in bringing this application. Order 45 provides that any application “For a review of judgment to the court which passed the decree or made the order should be made without unreasonable delay. From the record, the applicant went to the Court of Appeal seeking to be heard on appeal against the judgment of 23. 10. 2013, but was not successful, and on 28. 11. 2015, she consented to pay costs of kshs.50,000/= to the respondent, though according to the respondent the said costs are yet to be paid.

15. It is therefore not far-fetched to say that the instant application is an afterthought. The application was filed three years plus from the date of the judgment, and one year plus since entering into the consent on payment of costs on 28. 11. 2015.

Conclusion

16. For reasons that there is no discovery of new and important matter or evidence which could not have been within the knowledge of the applicant, after the exercise of due diligence this application fails. It is also my considered view that this is a matter that should be settled by the Court of Appeal because if I make a pronouncement that this court had no jurisdiction to hear and determine the matter, I would be sitting on appeal in my own cause. The law does not allow me to do so. Further, I am convinced that the applicant, who brought this application without involving her co-applicant, has become a frivolous and vexatious litigant who ought to be stopped from further abusing the court process. Litigation must surely come to an end.

17. Finally, though the application had a prayer for stay of execution the same was not canvassed by applicant’s counsel during submissions. I therefore consider the prayer as having been abandoned by the applicant.

18. In the circumstances, the applicant’s notice of motion dated 13. 03. 2017 is lacking in merit and the same is hereby dismissed with costs to the respondent.

It is so ordered

Judgment delivered, dated and signed in open court at Kakamega this 13th day of July, 2017

RUTH N. SITATI

JUDGE

In the presence of;-

…………..N/A…………………………...........for applicant/2nd defendant

……......…N/A…………………………….…..for 1st defendant

…..........…Mr. Matete for Atulo(present)…...for respondent

…......……Polycap…………………………...court Assistant