[2014] KECA 79 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(CORAM: VISRAM, KOOME & ODEK, JJ.A)

CIVIL APPEAL NO. 5 OF 2013

BETWEEN

JUSTUS M'INOTI M'MWAMBIA...............................APPELLANT

AND

M'RUKUNGA M'MBOROKI..............................1ST RESPONDENT

ATTORNEY GENERAL....................................2ND RESPONDENT

(An appeal from the Ruling of the High Court of Kenya at Meru (Makau, J.)

dated 18th October, 2012)

in

H.C.C.C NO. 13 OF 1996)

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JUDGMENT OF THE COURT

1. Before us is an appeal from the ruling of the High Court (Makau, J.) wherein the appellant's application for review of the High Court's ruling dated 3rd November, 2011 was dismissed with costs.

2. The 1st respondent filed suit in the High Court on 31st January, 1996 seeking inter aliaa declaration that the transfer of L.R No. Nyaki/Thuura/1911 (suit property) to the appellant was illegal and cancellation of the said transfer. It was the 1st respondent's case that he is the registered owner of the suit property; he purchased the same from one M'Muguongo M'Maitai in the year 1979; on or about 16th November, 1989 the appellant in collusion with the 2nd respondent fraudulently transferred the suit property to the appellant.

3. Upon being served with the summons to enter appearance, the appellant entered appearance on 12th February, 1996 but failed to file a defence. Consequently, interlocutory judgment was entered against the appellant on 16th October, 1996. The suit proceeded for formal proof and judgment was entered in favour of the 1st respondent on 15th September, 2005.

4. Subsequently, vide an application dated 30th April, 2010, the appellant sought inter aliaan order setting aside the interlocutory and final judgment against him as well as unconditional leave to defend the suit. The grounds upon which the appellant relied on were that after being served with the summons to enter appearance he instructed the firm of M/s Mwirigi M'Inoti to defend him; he visited the said advocate on several occasions and he was assured that everything was under control; Mr. S. Mwirigi M'Inoti was the sole practitioner in the said firm and he passed away around July/August, 2009. Following the demise of his advocate, the appellant obtained his file and realised that the suit had been heard and finalised. The appellant instructed the firm of M/s E. K. Ogoti who upon perusal of the court file informed him that his former advocate had not filed a defence. He attributed the failure to file a defence as a mistake of his late advocate which should not be visited on him.

5. In opposing the application, the 1st respondent contended that the appellant was guilty of inordinate delay because he had filed the application for setting aside, five years after the judgment was delivered on 15th September, 2005. He contended that the appellant was visiting his mistakes upon his former counsel and that the appellant was indolent for failing to follow up on the suit. The 1st respondent further contended that the decree of the court had already been executed and he had subdivided and transferred the suit property to third parties. The High Court (Makau, J.) vide a ruling dated 3rd November, 2011 dismissed the application with costs to the respondents.

6. Subsequently, the appellant filed another application on 19th April, 2012 seeking inter aliareview of the High Court's ruling dated 3rd November, 2011 on the ground that there was discovery of new and important matters. Firstly, that the suit as filed in the High Court was res-judicatabecause the issue in dispute was directly in issue in Meru RMCC No. 203 of 1980- Justus M'Inoti M' Mwambia -vs- M'Inoti M'Mwambia M'MuguongoKaritho which was consolidated with Meru RMCC No. 472 of 1980- Eugenio Thuranira -vs- M'Muguongo Kariithi (hereinafter referred as lower court suits). Secondly, as a result of the foregoing there were contradicting orders which have occasioned a miscarriage of justice. Thirdly, that the 1st respondent failed to disclose the same with the intention of misleading the High Court.

7. In opposing the application, the 1st respondent deposed that the application was incompetent and tantamount to asking the High Court to seat on appeal of its own decision. It was the 1st respondent's position that the only remedy available to the appellant was to prefer an appeal against the ruling dated 3rd November, 2011. By a ruling dated 18th October, 2012 Makau, J. dismissed the application with costs to the respondents. It is that decision that has provoked this appeal based on the following grounds:-

The learned Judge erred in fact and in law in failing to appreciate that various meritorious issues had been disclosed and warranted the exercise of the court's discretion in favour of the appellant.

The learned Judge erred in failing to hold that the legal issues disclosed by the application were of such a fundamental nature that went to the root of the suit and could only be competently dealt with by reopening the suit for full hearing.

The learned Judge erred in failing to find that sufficient reason had been expounded to warrant the exercise of discretion in the appellant's favour especially in view of the demise of the appellant's advocate.

The learned Judge erred in misdirecting himself on the issues for consideration.

The learned Judge erred in failing to give due regard to the appellants application thereby arriving at a preconceived conclusion.

The learned Judge erred in failing to give regard to the constitutional right to be heard and access to the courts.

8. Mr. Nderi, learned counsel for the appellant, submitted that the appellant filed appearance after being served with summons to enter appearance. The 1st respondent had alleged fraud on the part of the appellant and the 2nd respondent; the court entered interlocutory judgment against the respondent. He argued that the appellant was not notified of the entry of the interlocutory judgment despite having an advocate on record. He also maintained that no hearing notice was ever served upon the appellant's advocates in respect of hearing dates and therefore the 1st respondent proceeded ex parte and obtained judgment.

9. Mr. Nderi submitted that the appellant only learnt that judgment had been entered in favour of the 1st respondent in the year 2010 when auctioneers tried to execute the decree. Subsequently, the appellant appointed another advocate in April, 2010 and filed an application to set aside the exparte judgment. The High Court dismissed the application on the ground that the appellant had not attached a draft defence and had not given an explanation for failing to file a defence. Thereafter, the appellant filed an application for review shedding more light on the reasons for failing to file a defence and how he acquired the suit property. He argued that while considering the application for setting aside the expartejudgment, the learned Judge expressed that had the proceedings in the aforemetioned lower court cases been provided, he might have arrived at a different conclusion. This was the reason why the appellant filed the application for review and provided the said proceedings.

10. According to Mr. Nderi, the learned Judge had a predetermined mind because he failed to analyse the evidence produced by the appellant and to consider the reasons given for failing to file a defence. He maintained that there were exceptional circumstances which warranted the review of the ruling dated 3rd November, 2011. He urged us to allow the appeal.

11. Mr. Kirima, learned counsel for the 1st respondent, submitted that the appellant in the application for setting aside the expartejudgment did not explain why he failed to file a defence and did not attach a draft defence. Therefore, the learned Judge was not able to determine whether the appellant's defence raised triable issues. He argued that the court was kept in the dark regarding the appellant's defence from the year 1996 to date. He submitted that the appellant had not discovered new evidence to warrant the review. According to Mr. Kirima, the appellant always knew about the lower court suits. He stated that the appellant had not explained why he had not visited his advocate for 15 years; the suit was concluded in the year 2005 while the appellant's advocate died in 2009. Therefore, the appellant's advocate's death had no consequence to the suit as the suit was determined before his death. He urged us to dismiss the appeal. Miss Gathagu, learned counsel for the 2nd respondent, associated herself with the submissions of Mr. Kirima. She submitted that the delay of 5 years by the appellant in bringing the application for setting aside had not been explained; the High Court suit was not resjudicatasince the 1st respondent was not a party in the lower court suits.

12. In response to the aforesaid submissions, Mr. Nderi submitted that the High Court suit was res judicata since the 1st respondent was a party in the lower court suits. He argued that the mistake of the appellant's former advocate should not have been visited upon him.

13. This being a first appeal, we are mandated by law to re-evaluate the matter and arrive at our own independent conclusions. See Selle -vs- Associated Motor Boat Co. [1968] EA 123. In considering this appeal, it is important for us to point out that the subject of this appeal is the dismissal of the application dated 19th April, 2012. The appellant had sought in the said application an order for review and setting aside of the High Court’s ruling dated 3rd November, 2010. Whether or not a decision or order should be reviewed is a matter within a Judge’s discretion. Therefore, before we can interfere with the learned Judge’s discretion we must be satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or, that he misapprehended the law or failed to take into account some relevant matter. In Mbogo & Another- vs- Shah (1968) E.A. 93 at page 95, Sir Charles Newbold P. held,

“…..a Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjuctice….”

14. This Court in Mulembe Farm Limited &another –vs- John .B. Masika & 3 others– Civil Appeal No. 230 of 2004, expressed itself on the issue of review as follows:-

“Theappeal before us is against a ruling on a review application, and the factors which guide the court on a review application are set out in the relevant provisions on review. …Those factors are, firstly, that an applicant must show that there exist new and important matter or evidence which after exercise of due diligence were not within his knowledge or could not be produced at the time the decree or order was made. Secondly, and in the alternative, that there is some mistake or error apparent on the face of the record. Thirdly, and in the alternative, for any sufficient reason.”

See Section 80of the Civil Procedure Actand Order 45of the Civil Procedure Rules. For an applicant to succeed in an application for review, he/she ought to place material before the court to show any one or a combination of the three factors which are set out hereinabove.

15. The appellant in his application for review contended that there existed new and important matters that warranted review of the High Court’s ruling dated 3rd November, 2011. The appellant contended that the suit as filed in the High Court was res judicata because the issue in dispute was also directly in dispute in the lower court suits which had been determined prior to the High Court suit; consequently, there existed court orders which were in variance with the High Court’s ex parte judgment and decree. As set out hereinabove, for an application for review to succeed, the evidence must not only be new but the applicant must prove that he did not have it in his possession at the time and could not have obtained it despite due diligence. In this case the appellant was a party in the lower court suit and therefore he cannot claim that he never knew of the existence of the same when he made the application for setting aside the exparte judgment. We therefore concur with the following findings by the learned Judge:

“It is trite law that an order of review can only be issued upon discovery of new and important matter or evidence which after due diligence was not within the knowledge of the applicant at the time the judgment/ruling was passed and in the instant case, the 1st defendant/applicant(appellant) I find was all along aware of the existence of the cases referred to, and as such he cannot claim that this is a new matter that was not within his knowledge when the ruling that he now wants reviewed was delivered. The applicant did not prove any existence of court orders which are in variance with the court’s judgment and decree or the fact of the plaintiff (1st respondent) being guilty of misleading the court on the circumstances surrounding the suit or subject matter..”

16. The next issue that falls for our consideration is, whether the appellant had proved any other sufficient reason to warrant the review sought. Section 7of the Civil Procedure Actprovides:-

“Nocourt shall try any suit or issue in which the matter directly and substantially in issue has been directly substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

Having perused the record we concur with the following findings by the learned Judge (Makau, J.) on the issue of resjudicata:-

“It appears from the aforesaid cases the plaintiff/respondent (appellant) in the instant suit M’rukunga M’Mboroki was not a party to the cases above mentioned and as such the instant case cannot be resjudicata…Moreover the applicant had not annexed copies of the plaints in these suits and it’s very hard to tell what was the nature of the dispute.

17. It was the appellant’s contention that the failure to file his defence was due to the mistake of his late advocate. He contended that after he received summons to enter appearance, he instructed his late advocate who entered appearance on his behalf on 12th February, 1996. Thereafter, he made several visits to his advocate who assured him that everything was under control. It was only after the death of his advocate in the year 2009 that he learnt that judgment had been entered against him. The appellant’s counsel urged us not to visit the mistake of counsel upon the appellant. We are of the considered view that this explanation was not reasonable to warrant the orders sought. This is because the appellant did not satisfactorily prove that he diligently followed up on the matter from1996 until 2009 when his former advocate died. Further, we find that the appellant brought an application for setting aside the ex parte judgment 5 years after the said judgment was entered on 15th September, 2005. The delay was inordinate and inexcusable. This Court in Mulembe Farm Limited &another –vs- John .B. Masika & 3 others(supra)expressed itself as follows:-

“The power of review is not the same as the power exercisable on appeal. That is why the jurisdiction of the court in review is circumscribed. The court in a review is called upon to exercise discretion in a situation where, if the power is not exercised injustice or hardship will result and is invoked to help a party who is shown to have taken all essential steps in a matter but because of factors beyond his control he was not able to avail all relevant material or evidence, or that an error or mistake occurred.”

18. Having expressed ourselves as above, we find that this appeal lacks merit. Accordingly, it is dismissed with costs to the respondents.

Dated and delivered at Nyeri this 26th day of February, 2014

ALNASHIR VISRAM

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JUDGE OF APPEAL

MARTHA KOOME

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JUDGE OF APPEAL

J. OTIENO-ODEK

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR