[2022] KEHC 1365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA. NO. 016 OF 2017

JULIANA MULIKWA MUINDI ………………………..….… APPELLANT

VERSUS

BOM YANGUA MIXED SECONDARY SCHOOL……. 1ST APPLICANT

THE PRINCIPAL

YANGUA MIXED SECONDARY SCHOOL ….………. 2ND APPLICANT

RULING

1. Before me is an application dated 10th July 2020 filed by way of Notice of Motion filed by The Board of Management and the Principal of Yangua Mixed Secondary School with five (5) prayers, some of which have been spent as follows –

1. (Spent)

2. (Spent)

3. (Spent)

4. That this court be pleased to review its judgment delivered on 16th May 2018 and take into consideration the defence raised in the lower court proceedings and judgment delivered in Tawa PMCC No. 166 of 2015 wherein it was confirmed that the appellant did not have any document and/or evidence confirming the supply of firewood to the respondent school and that further the appellant’s testimony was uncorroborated in the lower court, hence the suit was dismissed with costs.

5. Costs of this application be in the cause.

2. The application has grounds on the face of the Notice of Motion. The main ground being that the School Principal forwarded pleadings to the Ministry of Education who advised that they would inform the Attorney – General to represent them but inadvertently the Ministry failed to inform the Attorney-General in time.

3. The application was filed with a supporting affidavit sworn by Constantine Kameti the Principal of the school, in which it was deponed that on dismissal of the case by the magistrates’ court, JULIANA MULIKWA MUINDI filed an appeal in the High Court which was not responded to as the Attorney – General was not briefed by the Ministry of Education to represent the school as was expected, and that therefore the ex-parte judgment in the appeal should be set aside.

4. The application has been opposed through a replying affidavit sworn by Elizabeth Isika advocate for JULIANA MULIKWA MUINDI in which it was deponed that the Attorney-General who had entered appearance in the magistrates’ court, was served with the record of appeal, and that there was no error apparent on the record that would justify a review of this court’s judgment.

5. In response, Constantine Kameti filed a further affidavit, explaining the details of internal acts in the Attorney-General’s Office, wherein the Attorney –General did not respond to the appeal, and consequently, an ex-parte appeal judgment was entered.

6. The application proceeded through filing of written submissions, and I have perused and considered the written submissions filed by the Attorney – General for the applicants, as well as the written submissions filed by Mulwa Isika advocate for the respondent.

7. This is an application for review of judgment of this court. I note that both counsel have submitted on the applicability of section 80 of the Civil procedure Act (cap.21) and Order 45 of the Civil Procedure Rules.

8. Indeed, section 80 of the Civil Procedure Act (cap.21) and Order 45 of the Civil Procedure Rules are relevant. In particular Order 45(1) 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 diligent 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 sufficient reason, desires to obtain a review of the decree or order may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay”.

9. In their submissions, the two applicants are saying that there was an error on the face of the record, in that the High Court on appeal, did not take into account what the magistrate found that JULIANA MULIKWA MUINDI did not tender evidence to prove her claim. They have also submitted that the High Court judgment on appeal was ex-parte as the Attorney-General did not attend court to argue the case for the school.

10. On the issue that the High Court did not take into account what the magistrate found, I note that the High Court acknowledged that the school wrote a letter Exhibit 2 accepting indebtedness, but were of the view that the indebtedness was Kshs.12,500/= (one lorry) and not Kshs.35,000/= (three lorries) as claimed by the respondent herein.

11. The High Court went further to analyse decided court cases on the failure of a party to adduce evidence to support what they alleged or pleaded and concluded in paragraph 22, as follows –

“22. The legal position is therefore clear and I fully associate myself with the sentiments of the learned Judges. Failure by the respondents to file any pleadings and participate actively in the matter irresistibly lead to the conclusion that the appellant’s claim was uncontroverted and unchallenged”.

12. The above being the substantive finding of this court, in my view, it cannot be said that the High Court did not take account of what the trial magistrate found. Such a substantive finding cannot be changed by this court through the review process. It can only be considered and possibly set aside by the Court of Appeal in an appeal.

13. The second complaint of the applicants is that the judgment of the High Court was ex-parte because the Attorney-General did not attend court to argue the appeal for the school, and thus the exparte judgment should be reviewed. I observe that the defendants in the trial court was not the Attorney –General nor is there any written law requiring that the Attorney-General be served or should represent the Board of Management of the School. Thus in my view, the High court cannot be faulted for making its decision on appeal in the absence of the Attorney –General. The court was also not called upon to be involved in the sleaze of the Attorney –General or the Ministry of Education as the information now being raised in this application for review of judgment was not communicated to the High Court.

14. In addition to my above findings, I find no other sufficient reason to persuade me to review this court’s decision made on appeal, as the actual claim difference is between payment for one lorry of firewood and three lorries of firewood as principal amount, which is only Kshs.22,500/=. It was a matter for the court to believe one version against the other.

15. In the circumstances of this matter, I find that the applicant has not demonstrated to this court sufficient reasons to persuade this court to review its judgment.

16. I thus dismiss the application for review of judgment, with costs to the respondent JULIANA MULIKWA MUINDI. Any interim orders issued by this court herein are hereby vacated.

Delivered, Signed & dated this 15th day of March 2022, in open court at Makueni.

……………………………….

George Dulu

Judge