[2022] KEHC 2464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

(Coram: Odunga, J)

CONSTITUTIONAL PETITION NO. 43 OF 2019

IN THE MATTER OF: ARTICLES 19, 20, 22 AND 23 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: ALLEGED THREATS TO AND CONTRAVENTION OF RIGHTS UNDER ARTICLES 27, 28, 29, 35, 40, 43, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: ARTICLES 50(4), 156(6), 157(10) AND 245(4) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE BASIC EDUCATION ACT NO 14 OF 2013

AND

IN THE MATTER OF: FAIR ADMINISTRATIVE ACTIONS ACT

AND

IN THE MATTER OF: THE ALCOHOLIC DRINKS AND CONTROL ACT NO 4 OF 2010

AND

IN THE MATTER OF: CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

BETWEEN

LONDON DISTILLERS (K) LTD…..…………..……………... PETITIONER

AND

THE CABINET SECRETARY,

MINISTRY OF EDUCATION……………….…….…...…1ST RESPONDENT

THE COUNTY DIRECTOR OF EDUCATION,

MACHAKOS COUNTY………………………………….2ND RESPONDENT

KITENGELA INTERNATIONAL SCHOOLS…....……3RD RESPONDENT

ERDERMANN PROPERTY LTD….……..….....………..4TH RESPONDENT

THE ATTORNEY GENERAL…………….………….…..5TH RESPONDENT

RULING

1. On 29th April, 2020, I dismissed this petition with costs. In arriving at the said decision, I found that the provisions of the Section 12(1)(c) of the Alcoholic Drinks Control Act relied upon by the petitioner in support of its case were of no assistance to the petitioner since its operations do not fall within the ambit of that provision. Secondly, I found that the allegations made by the petitioner were remote as there was no certainty that that would be the position and whether such complaints had any chances of succeeding. I therefore found that no case had arisen where the petitioner’s operations were threatened with stoppage. It was my view that the issue of the establishment of the 3rd Respondent’s school being a step towards the crippling of the operations of the petitioner was rather speculative at that stage as it could not be said that it was the natural sequel to the establishment of the said school in order for the court to find that by establishing its school, the 3rd Respondent intended to bring to a halt the operations of the petitioner.

2. The Petitioner has now moved this Court vide an application dated 3rd June, 2020 seeking substantively, that the Court reopens this Petition for the purposes of reviewing its said decision on the basis of discovery of new evidence and facts material to the orders sought therein.

3. According to the Petitioner, it has just recently learnt that the 4th Respondent has now commenced the operations of a liquor shop at its premises in unit 201 for public sale and consumption of the alcoholic products including those of London Distillers. According to the Petitioner, the said shop where the said products are being sold and consumed is not more than three (300) metres from where the 3rd Respondent is being operated. It was contended that from the previous conduct of the 3rd Respondent, the setting up of the said shop in its premises next to the school where the Petitioner’s products are being sold for consumption is just a stepping stone and a ploy to sabotage its operations.

4. It was contended that the establishment of the said shop right next to the Petitioner’s distillery and the school, and the fact that its alcoholic products have actually found their way into the shelves thereof so as to fuel the very conflict which was sought to be avoided by this petition, was not before this court by the time the judgement was being rendered. It was contended that had these facts been before the court as at the time of the hearing before judgement, possibly a different outcome could have been arrived at.

5. In opposing the said application, the 4th Respondent contended that there is no lawful justification/reason demonstrated for reviewing the said decision. It was contended that the crux of the Petitioner’s Petition was that the 3rd Respondent was likely to approach the Court in future or collude with the 4th Respondent to lodge complaints with government institutions with the intention of closing the Petitioner’s operations on the grounds of their proximity to the school on the grounds that such operations amount to a violation of the children’s rights under Article 53 as read together with Article 43(1)(f) of the Constitution. It is contended that the Petitioner now seeks for review, not on the basis that the 3rd or 4th Respondents have taken steps to shut down its distillery by making complaints to various government institutions due to its proximity to the 3rd Respondent’s school, but on the grounds that a liquor shop has been opened at the 4th Respondent’s mall Greatwall Gardens Mall.

6. The said Respondent cited the case of Dock Workers Union & 2 others vs. Attorney General & another Kenya Ports Authority & 4 others (Interested Party) [2019] eKLRand it was contended that even if this Honourable Court was to find that the new evidence-discovery of a liquor shop in Greatwall Gardens Mall- was to be considered as new evidence, the same is not sufficient to warrant review of the judgment of the judgment. This is because the said evidence does not make the operations of the Petitioner fall within the ambit of Section 12(1)(c) of the Alcoholic Drinks Control Act; does not reveal a threat to stop the Petitioner’s operations; and does not establish that the 3rd Respondent’s school intends to bring to a halt the operations of the Petitioner.

7. Consequently, it was contended that no sufficient ground for review has been established for this Court to review its judgment in the matter and to re-open the Petition for re-hearing and this Court ought to move under Order 45 Rule 3(1) of the Civil Procedure Rules, 2010 to dismiss the Application with costs.

8. It was further contended that this Court is already functus officio in respect of the matters in the Petition and the Application raises a new cause of action. Reliance was placed on the case of Telkom Kenya Limited vs. John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR. To the said Respondent, the Petitioner has introduced a new set of facts and new cause of action and is now seeking to re-open the Petition to be heard on a completely new premise, being discovery of liquor shops in Greatwall Gardens Mall. The Application by the Petitioner, it was averred, seeks to change the nature and character of the Petition which cannot be countenanced. To the said Respondent, this would be in abuse of the Court process and that the Petitioner ought to file a new suit, if at all they wish to litigate on the new set of facts.

9. It was further averred that the Petitioner lacks locus standi in advancing the claims set out in the Application. It is contended that the provisions of Section 12(1)(c) of the Alcoholic Drinks Control Act are tailored to protect children. Unless the Petitioner is able to establish that the liquor shops at Great Wall Gardens Mall have actually threatened its operations, in which case, the Petitioner would be arguing that its Constitutional rights have been violated or threaten to be violated, it must bring itself within the ambit of Article 22(2)(a) to (d) and Article 258(2)(a) to (d).

10. According to the said Respondent, unless the Petitioner is able to demonstrate that its operations are threatened, which it has failed to do, then the Petitioner will be required to demonstrate that the Petition is brought in the public interest, in which case it needs to demonstrate that it is seeking to act on behalf of persons who cannot act for themselves, or is member of or it has interest of in a group or class of persons, or is acting for the public interest, or it an association which is acting in the interest of its members.

11. In this case, a reading of the Petition and the Application demonstrates that it seeks to protect the Petitioner’s business from being shut down by virtue of proximity to the 3rd Respondent’s school. Its interest is an entirely private interest and not public interest, and as such, it lacks locus standi to pursue the claim for shutting down liquor stores due to proximity of those stores to the 3rd Respondent’s school.

12. It was further averred that the Application for review is incompetent as the Petitioner has already preferred an appeal against the decision dated 29th April 2020. It was disclosed that following delivery of the judgment of this Court on 29th April 2020, the Petitioner filed a Notice of Appeal and applied for typed proceedings to enable it appeal against the decision. Having taken the first formal step in appealing against the judgment of this Court by filing the Notice of Appeal, it was contended, it was not open to the Petitioner to file an Application for review, as it did since Order 45 Rule 1(b) of the Civil Procedure Rules, 2010 provides that only persons who are aggrieved by a decree or order from which an appeal is allowed but from which an appeal has not been preferred may apply for review. Reliance was placed on the Court of Appeal decision inEquity Bank Limited vs. West Link Mbo Limited [2013] eKLRand it was contended that by filing a Notice of Appeal, the Petitioner divested itself of the right to apply for review, and consequently, its application herein is incompetent and bad in law and the same ought to be dismissed with costs.

13. The said Respondent’s position was that the Application was not filed timeously as required by Order 45 Rule 1 of the Civil Procedure Rules, 2010 because the judgment in this matter was delivered on 29th April 2020 and the Petitioner filed the Application before this Court on 10th June 2020, a period of over one (1) month and eleven (11) days, a period that has not been explained.

14. That was substantially the position adopted by the other Respondents to the application.

Determination

15. I have considered the material placed before me in this matter. On 26th July, 2021, I directed the parties herein to furnish the court with soft copies in word format of their pleadings in respect of this application and the ruling date was reserved for 13th October, 2021. On 13th October, 2021, the parties had not complied with the said direction and the delivery of the ruling was rescheduled to 24th November, 2021 by which day the Applicant has as yet not complied. This Court therefore directed the Applicant to furnish the said soft copies within 3 days and in default, the application would stand dismissed with costs. Suffice it to say that the said direction was not complied with once again. Technically therefore, the Motion dated 3rd June, 2020 stood dismissed with costs. However, in the wider interest of justice, I decided to consider the same on its merits.

16. Order 45 rule 1(b) of the Civil Procedure Rules, provides 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.”

17. The foregoing provisions are based on section 80 of the Civil Procedure Act Cap 21 Laws of Kenya which states as follows:

“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.”

18. In the case of Dock Workers Union & 2 others v Attorney General & another Kenya Ports Authority & 4 others (Interested Party) [2019] eKLRit was therefore held that: -

“In this regard, for a Court to review its own orders, it must be demonstrated that there is discovery of new and important matter or evidence. It must also be shown that the new evidence was not within the knowledge of the party seeking review or could not be produced at the time the orders were made. Such party must also satisfy the Court that this was the case even after exercise of due diligence. A Court will also review its orders if it is demonstrated that there is some mistake or error apparent on the face of the record, or for any other sufficient reason. The error must be evident on the face of the record and should not require much labour in explanation. An application for review must also be made without unreasonable delay.”

19. It is clear from the foregoing that the review remedy is only available to a party who, though has a right to challenge the decision in question by an appeal, is not appealing or to whom there is no right of appeal. In other words, a person cannot exercise both the right of appeal and review at the same time. See Orero vs. Seko [1984] KLR 238.

20. Who, then is a party who is appealing? There are two contradictory decisions from the Court of Appeal. In Kisya Investments Ltd vs. Attorney General and Another Civil Appeal No. 31 of 1995 the Court held that a party who has filed a notice of appeal cannot apply for review but if application for review is filed first, the party is not prevented from filing appeal subsequently even if a review is pending. However, in Yani Haryanto vs. E. D. & F. Man. (Sugar) Limited Civil Appeal No. 122 of 1992the Court of Appeal was of the following view:

“The facility of review under Order 44 of the Civil Procedure Rules is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review. A notice of appeal apart from manifesting a desire to appeal, appears to have a two-fold purpose; one of the purposes is apparent from the rules that follow up to and including rule 79. The other purpose is to enable the High Court to entertain an application for stay of execution before the appeal is filed...What rule 4(1) of Order 41 of the Civil Procedure Rules prescribes for is an exception to the rule relating to the actual filing of the appeal which is rule 81(1) of the Court of Appeal Rules. The exception is the deeming of the appeal to be filed for the purposes of rule 4 of Order 41 only on the giving of the notice of appeal. Therefore despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review... An appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal”.

21. In light of the two decisions emanating from the same Court of Appeal, this Court is entitled to adopt either of the two decisions. In my view the Haryanto Case reflects the true legal position. A Notice of Appeal is not an appeal but just a formal notification of an intended appeal. It is however deemed to be an appeal for the purposes of an application for stay. That deeming effect, however, does not elevate it to an appeal which it is not. That is my understanding of the decision in Equity Bank Limited v West Link Mbo Limited[2013] eKLR which dwelt on Order 42 rule 6 (4) of the Civil Procedure Rules under which a Notice of Appeal is deemed to be an appeal for the purposes of seeking stay of execution. is also relevant in considering what an appeal is.As was held in Prof. Peter Anyan’g Nyong’oand10 Othersvs. Attorney GeneralofKenya & Others EACJ Reference No. 1of2006[2007] 1 EA 5; [2007] 2 EA 5; [2008] 3 KLR (EP) 397:

“The word “deemed” is commonly used both in principal and subsidiary legislation to create what is referred to as legal or statutory fictionand the legislature uses the word for the purpose of assuming the existence of a fact that in reality does not exist...The word “deemed” is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.”

22. In fact, under Rule 77(1) of the Court of Appeal Rules it is provided that an intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal. Clearly, a strict reading of this rule contemplates a situation where a Notice of Appeal may even be served before the same is lodged. Where that happens I cannot see how such a Notice which has not even been lodged can by any stretch of imagination be equated to an appeal. Accordingly, the mere fact that a party has given a Notice of intention to appeal does not amount to an appeal for the purposes of review.

23. However, the same Court in The Chairman Board of Governors Highway Secondary School vs. William Mmosi Moi Civil Application No. 277 of 2005 had this to say:

“The Board took an active part in giving instructions to the advocate on the various matters the advocate was pursuing before the superior court. In particular the Board gave instructions that an application be filed for review of the ruling and it is the same ruling against which instructions had already been given for filing an appeal to the Court of Appeal. In those circumstances the options available to the Board were exhausted when the application for review was determined by the superior court and it is doubtful whether the intended appeal would be valid even if it was filed. An aggrieved party under Order 44 of the Civil Procedure Rules can apply for the review of a decree or order either where “no appeal has been preferred” or where “no appeal is allowed”. An appeal is allowed on orders made under Order 9A rule 2 Civil procedure Rules, as in this case, and indeed the Board filed a notice of appeal under rule 74 of the rules to challenge the orders. A notice of appeal however is only a formal notification of an intention to appeal and it cannot be said that the aggrieved party has “preferred” an appeal at that stage and was thus precluded from exercising the option of review. The issue as to whether a respondent having filed a notice of appeal, which had not been withdrawn, was answered in the affirmative by the Court of Appeal in Yani Haryanto Vs. E. D. & F. Man (Sugar) Ltd Civil Appeal No. 122 Of 1992 (UR)... The Board was at liberty to pursue the option of review of the orders despite the filing of a notice of appeal to challenge the same orders. However upon the exercise of that option and pursuit therefrom until its conclusion, there would be no further jurisdiction exercisable by an appellate court over the same orders of the court. That was the end of the matter and the notice of appeal was rendered purposeless. Both options cannot be pursued concurrently or one after the other”.

24. Whereas under Order 45 rule 1, a person aggrieved by a decision whether an appeal is allowed or not but who is not appealing, is at liberty to apply for review of the decision, that provision, in my respectful view, is not a carte blanche for abuse of the process of the Court. In the case of Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 Kimaru, J dealing with the issue of abuse of the process of the Court stated as follows:

“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stopthe proceedings, or put an end to it”.

25. Whereas there is no express bar in the rules to a party who has attempted to review a decision from subsequently appealing against the same, it must be noted that the Rules are subject to the provisions of the Civil Procedure Act under which section 3A empowers the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. To allow parties who have in the past unsuccessfully attempted to review a decision, to attack the very decision of review on appeal would in my view open several fronts in litigation since the possibility of the applicant also appealing against the decision refusing the review cannot be ruled out. The provisions of Order 45 rule 1 are meant to assist genuine litigants and not to assist parties who have deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. In my considered view the wording of the provisions of Order 45 rule 1 are meant to take into account the fact that the said provisions are not restricted to parties to a suit since it talks of “any person considering himself aggrieved”. An aggrieved party may not find the avenue of an appeal feasible and may apply for review without locking out those parties who may wish to pursue an appeal from doing so. But to apply for review with the intention of opening up fresh fronts for litigation on appeal against the order emanating from review and an appeal against the order sought to be reviewed amounts, in my view, to an abuse of the process of the Court. It would also contravene the overriding objective as provided under sections 1A and 1B of the Civil Procedure Act whose aim is the disposal of cases expeditiously and avoidance of multiplicity of proceedings. To find otherwise would amount to giving the Court’s seal of approval to persons who wish to play lottery with judicial process. Accordingly, I associate myself with the decision in The Chairman Board of Governors Highway Secondary School vs. William Mmosi Moi(supra) that both options cannot be pursued concurrently or one after the other.

26. It is contended that this Court is now functus officio. According to the Respondents, functus officio in respect of the matters in the Petition and the Application raises a new cause of action. To the said Respondents, the Petitioner has introduced a new set of facts and new cause of action and is now seeking to re-open the Petition to be heard on a completely new premise, being discovery of liquor shops in Greatwall Gardens Mall. The Application by the Petitioner, it was averred, seeks to change the nature and character of the Petition which cannot be countenanced. To the said Respondent, this would be in abuse of the Court process and that the Petitioner ought to file a new suit, if at all they wish to litigate on the new set of facts.

27. The doctrine of functus officio according to the Court of Appeal in the case of Telkom Kenya Limited vs. John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR: -

“…is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in JERSEY EVENING POST LTD VS AI THANI [2002] JLR 542 at 550, also cited and applied by the Supreme Court;

“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”

28. In this application what is sought is a review of the earlier decision on the ground that new evidence has come to light. Whether or not there in fact exist new evidence is something else. However, in so far as the applicant only seeks a review, this Court is not barred from entertaining the application. It may however, still dismiss it notwithstanding that it has heard the same. Accordingly, I find that this court is not functus officio.

29. It was further averred that the Petitioner lacks locus standi in advancing the claims set out in the Application. It is contended that the provisions of Section 12(1)(c) of the Alcoholic Drinks Control Act are tailored to protect children. Unless the Petitioner is able to establish that the liquor shops at Great Wall Gardens Mall have actually threatened its operations, in which case, the Petitioner would be arguing that its Constitutional rights have been violated or threaten to be violated, it must bring itself within the ambit of Article 22(2)(a) to (d) and Article 258(2)(a) to (d).

30. With due respect to the Respondents, they have misunderstood the purport of this application. In this application the Applicants seeks an order of the Court to reopen the case. Accordingly, by this application, the Applicant does not purport to be bringing a new cause of action but is seeking to have the judgement corrected based on what it believes is the discovery of new material. While its position may not necessarily be correct, the Application cannot be disallowed merely on the ground that the Applicant has no locus standi in the matter.

31. The Code of Civil Procedure,Volume III Pages 3652-3653 bySir Dinshaw Fardunji Mulla states:

“The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers should be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not ground for review. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an Appellate Court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.”

32. In Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited Nairobi (Milimani) HCCC No. 532 of 2004, Okwengu, J(as she then was) expressed herself as hereunder:

“In this case the court is being invited to review the order on the grounds that there is an error apparent on the face of the record or other sufficient reason the pleadings, in particular, the plaintiff’s reply to the amended defence in which the plaintiff is alleged to have conceded that the defendant’s fee policy was illegal and contra statutewhich was the basis of the Defendant’s application for striking out the plaint. It is the defendant’s contention that the plaintiff is bound by his pleadings and could not therefore depart from the same…It is my considered opinion that the pleadings went beyond the reply to the amended defence and to understand the matters which were in issue one has to look at the plaint vis-à-visthe amended defence and the reply to the amended defence. A careful reading of the ruling however, makes it clear that the court had the pleadings in mind and moreover, there is no basis for the conclusion that the court would have arrived at any different decision. The court was simply interpreting the provisions of Section 36 and 45 of the Advocates Act as read with the Advocates Remuneration Order and it was not bound by any position taken by the parties. It may well be that the court was wrong in its interpretation or in the approach it took. However, that is not a matter that can be taken up on review as it is not an error apparent on the face of the record but ought to be subject of an appeal. Moreover to invite the court to set aside the order of dismissal and substitute it with an order striking out the plaint and dismissing the plaintiff’s suit in effect is to invite the court to sit on appeal on its own ruling and make a complete turnaround which is not within the purview of Order 44 of the Civil Procedure Rules.”

33. The Court of Appeal in Mahinda vs. Kenya Power & Lighting Co. Ltd [2005] 2 KLR 418 expressed itself as follows:

“The Court has however, always refused invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made for to depart from this would be a most dangerous course in that it would open the doors to all and sundry to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made.”

34. That is my understanding of the decision in Evan Bwire vs. Andrew Aginda Civil Appeal No. 147 of 2006cited in the case of Stephen Githua Kimani vs. Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR where the Court of Appeal held as follows:

“An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.”

35. In this case the application is based on the allegation of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the Applicant’s knowledge or could not be produced by it at the time when the decree was passed or the order made.

36. I associate myself with the decision of Kuloba, J in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994where he opined that:

“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.”

37. Similarly, in Tiwi Beach Hotel Ltd vs. Brown Nairobi HCCC No. 136 of 1982 [1993] KLR 595, Owuor, J (as she then was) found that:

“…there is nothing in the affidavits which brings the application within the ambit of the rule. All the documents now attached to the affidavits are such that were in existence at the date when the judgement was entered or could have been available after the exercise of due diligence. There is no material before the Court that were not within the applicant’s knowledge or could not be produced by her at the time when the decree was passed.”

38. Even then, in Baneland Enterprises vs. NIC Bank Limited & Another Nairobi (Milimani) HCCS No. 251 of 2007,Kimaru, Jexpressed himself as follows:

“For the court to favourably consider an application to review a decision of the court on the grounds that the applicant has made discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant at the time the original application was argued under Order 44 rule 1 of the Civil Procedure Rules, it must be satisfied that such new and important matter or evidence is of such nature that it would lead any court of law applying its mind to the facts and the law applicable to the case reach a determination that if the court which heard the original application had the advantage of the new evidence, it would have reached a different decision other than the one that was rendered. The applicant must also establish that the new and important matter or evidence was not within its knowledge after the exercise of the normal diligence required of any conscientious litigant.”

39. That was the position in Touring Cars Ltd. & Another vs. Ashok K Makanji Civil Appeal No. 78 of 1998 [2000] 1 EA 261 where the Court of Appeal held that a party who relies on discovery of a new and important matter for the purposes of review must plead the same and that in an application for review on ground of a new and important factor the said new factor must be one which was not within the knowledge of the applicant after the exercise of due diligence.

40. In Iddi Faraj vs. Sheikh Amin Bin Musellem [1960] EA 917 it was held that:

“The ground of review of a decree on the discovery of new and important matter and evidence, which was not within the applicant’s knowledge, or could not be produced by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event.”

41. As appreciated by the Court of Appeal in Kaiza vs. Kaiza Civil Appeal No. 225 of 2008 [2009] KLR 499:

“An application for review under Order 44 rule 1 must be clear and specific on the basis upon which it is made. The motion before the Superior Court was based on the discovery of new facts. However, it is not every new fact which will qualify for interference with the judgement or decree sought to be reviewed. In the words of the rule itself, it is “....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....”. Applications on this ground must be treated with great caution and as required by rule 4(2)(b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of discovery of new evidence, it must be proved that the applicant had acted with due diligence and the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made. Where such a review is based on the fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”

42. The foregoing authorities set out what the Court ought to consider in application for review based on the ground of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the Applicant’s knowledge or could not be produced by it at the time when the decree was passed or the order made. To summarise them, firstly, the applicant must also establish that the new and important matter or evidence was not within its knowledge after the exercise of the normal diligence required of any conscientious litigant; secondly, the new and important matter and evidence must be something which existed at the date of the decree, hence the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event; thirdly the Court would decline to grant the application where the applicant is not seeking to give effect to its intention at the time the decision was made but to open the doors to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made; Fourthly, such new and important matter or evidence is of such nature that it would lead any court of law applying its mind to the facts and the law applicable to the case reach a determination that if the court which heard the original application had the advantage of the new evidence, it would have reached a different decision other than the one that was rendered; and lastly, it must be proved that the applicant had acted with due diligence and the existence of the evidence was not within his knowledge and the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.

43. In this case, the Applicant contends that it has just recently learnt that the 4th Respondent has now commenced the operations of a liquor shop at its premises in unit 201 for public sale and consumption of the alcoholic products including those of London Distillers. According to the Petitioner, the said shop where the said products are being sold and consumed is not more than three hundred (300) metres from where the 3rd Respondent is being operated and to the Applicant, the setting up of the said shop in its premises next to the school where the Petitioner’s products are being sold for consumption is just a stepping stone and a ploy to sabotage its operations.

44. The Applicant has not stated that at the time of the hearing, it was unable to discover this so called new and important matter. In other words, there is no evidence of diligence on the part of the Petitioner. It is not contended, for example, that the said liquor shop was being operated furtively so that the Applicant could not have been aware of its operations. Would this court have reached a different decision other than the one that was rendered if it had the advantage of the new evidence? In its decision this Court found that the provisions of the Section 12(1)(c) of the Alcoholic Drinks Control Act were of no assistance to the petitioner since its operations do not fall within the ambit of that provision. It is these same provisions that the Applicant is relying upon to seek the review. Secondly, the application is still speculative since there is no certainty that any person intends to invoke the aforesaid provisions even if they were applicable. In my view, by granting this Motion, this Court would not be giving effect to its intention at the time the decision was made.

45. Before I pen off, I wish to remind counsel that as officers of the Court they should avoid the temptation to jump into the arena of litigation. Advocates ought to remember that clients only retain their services and are not their employer. Therefore, they are not servants of the client and ought not to be the mouthpiece through which virulent averments are spewed out against each other. In other words, advocate must take care not to turn the fact of retainer into a launch pad from which scurrilous and unnecessary but undignified missiles are unleashed either against themselves, the Court or even the other parties. As was held by the Court in Wamwere vs. Attorney General [1991] KLR 107, as officers of the court, advocates are expected to conduct themselves properly and with some degree of decorum in court.

46. Advocates have a duty to protect the dignity of the Court and w+hereas they owe a duty to protect the interest of the client with as much vigour and force as the case deserves, such vigour and forcefulness ought not to be transmuted into a condescending attitude or an unnecessary aggression towards the other parties, their counsel or the Court. Their duty is to assist the Court in arriving at fair and correct decisions by assisting their clients in bringing out the facts and the law with clarity and not necessarily to win the case at all costs. A was held in Malindi Air Service Limited & Another vs. Halima Abdinoor Hassan Civil Application No. Nai. 103 of 1999:

“Advocates are honourable people...They are officers of the Court. Their duty first lies to the Court and then to their clients.”

47. When advocates take upon themselves to step into the shoes of their clients and fight their clients’ battles, they then are nolonger acting as counsel but as litigants. Advocates must clearly identify the demarcation between themselves and their clients and they ought not either by action or inaction knowingly blur that boundary. In this case certain statements both in the affidavits and submissions clearly show that counsel were not alive to the need to avoid the temptation to enter the arena of litigation and the manner I which the depositions were sworn and the submissions made seemed to have transcended the boundaries of the role of counsel as officers of the Court. I will however, say no more on the matter.

48. Consequently, the Petitioner/Applicant has failed to satisfy me that the application meets the threshold for a review and the Motion fails and is dismissed with costs to the 3rd and 4th Respondents.

49. It is so ordered.

Read, signed and delivered in open Court at Machakos this 8th day of February, 2022.

G V ODUNGA

JUDGE

Delivered in the presence of:

Mt Ogutu for Mr Tiego for the Petitioner

Mr Gitura for Mr Nyaburi for 3rd Respondent and for Mr Lusi for the 4th Respondent

CA Susan