[2023] KEELC 22079 (KLR)

Meja & 2 others v Saad & 2 others (Environment and Land Appeal E003 of 2023) [2023] KEELC 22079 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22079 (KLR)

Republic of Kenya

In the Environment and Land Court at Vihiga

Environment and Land Appeal E003 of 2023

E Asati, J

December 7, 2023

Between

Peter Miheso Meja

1st Applicant

Melvin Minayo Opiyo

2nd Applicant

Rebecca Sammy

3rd Applicant

and

Ahmed Abdallah Ahmed Saad

1st Respondent

John Madete Meja

2nd Respondent

Isaac Vusungu Amwaga

3rd Respondent

Ruling

1. This ruling is in respect of the Notice of Motion Application dated 3rd October, 2023 brought pursuant to the provisions of Order 51 Rule 1 and Order 45 Rule 1(1) of the Civil Procedure Rules, 2010, Sections 1A, 3A and 80 of the Civil Procedure Act, Article 159(2)(b) and (d) and 162(2)(b) of the Constitution of Kenya 2010. It seeks for the following orders: -a.That the application be certified urgent.b.The court be pleased to review, vary and/or set aside the judgement and the consequential orders on costs issued on 21st September, 2023 and substitute the same with an order dismissing the 1st Respondent’s case.c.That the honourable court be pleased to make such other and/or further orders as it may deem fit in the circumstances of the case.d.That the costs of the application be in the cause.

2. The application was based on the grounds that judgement was delivered herein on 21st September, 2023 wherein the court dismissed the applicant’s appeal for lack of merit and awarded costs to the 1st Respondent. That on perusal of the judgement, it has emerged that there are several errors apparent on the face of the record and sufficient reasons to warrant review and/or setting aside of the judgement together with the orders made on 21st September, 2023. That the 1st Respondent shall not suffer any prejudice if the orders sought are granted. Further, that the application has been brought timeously and without unreasonable delay. That it is in the interest of justice that the orders sought be allowed.

3. The application was supported by the averments in the Supporting Affidavit sworn by Peter Miheso Meja on 3rd October, 2023 and the annextures thereto.

4. The application was unopposed. Affidavit of Service sworn by Mildred Tweza Muhavi on 17th October, 2023 shows that the 1st Respondent was served with the application and hearing notice on 11th October, 2023 at 10. 39 a.m. Further, Affidavit of Service sworn by Moses Omondi Ogada on 13th October, 2023 shows that the 2nd and 3rd Respondents were served with the application and hearing notice.

5. The application was argued orally on 23rd October, 2023. Counsel for the applicant asked the court to allow the application as prayed as it was unopposed. That regarding prayer 3 of the application, since the suit had been filed incompetently, the court should protect the interests of the estate of the deceased. That the court should issue an order that the proceedings in the lower court be dismissed.

6. The application before court is an application for review of the court’s judgement and consequential orders. The grounds upon which a court may review and set aside its judgement, decree or order are clearly set in the law. The power to review and set aside judgements, decrees and/or orders is provided for in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010. Section 80 provides that“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; orb.by a decree or order from which no appeal is allowed by this Act,may apply for a review of the judgement of the court which passed the decree or made the order, and the court may make such orders thereon as it thinks fit.”

7. Order 45 Rule 1 (1) Civil Procedure Rules under which the application is brought provides that: -“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, orb.by a decree or order from which no appeal is hereby allowedand 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 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 judgement to the court which passed the decree or made the order without unreasonable delay.”It is clear that the grounds upon which an application for review of judgement decree or order can be made are: -a)discovery of a new and important matter or evidence orb)some mistake or error apparent on the face of the record orc)any other sufficient reason.d)the application must be brought without unreasonable delay.

8. The ground advanced by applicant herein is that the judgement sought to be reviewed has several errors apparent on the face of the record. And the error apparent on the face of the record as pointed out in the Supporting Affidavit is firstly, in paragraph 1(c)of the judgement which reads “a declaratory order that the Plaintiff is the legal owner of the land parcel identified/demarcated as L.R. No. Tiriki/Tigoi/685 (Parcel B) a portion of L.R. No. Tiriki/Tigoi/685 having purchased the same from the deceased”.The applicant contended that the court did not address its mind to the matters stated in paragraph 1(c) of the judgement as read with the contents of paragraph 4 of the 1st Respondent’s amended plaint dated 9th November, 2021 where the 1st Respondent had indicated that he was a beneficial owner of the land.

9. Secondly, that according to the applicant, the error was also on account of the manner in which the names of 2nd and 3rd applicants were struck out of the proceedings in that the firm of Omondi Leah & Associates had not complied with order 9 Rules 5 and 6 of the Civil Procedure Rules 2010. That the subordinate court ought to have ensured that there was proper representation before the names of the 2nd and 3rd Respondents were struck out.

10. The third aspect of the error as pointed out by the applicant is the issue of ownership. That the 1st Respondent alleged to have bought the suit land from the deceased (Timateo Omunga) but did not tender any document to ascertain ownership by the deceased, unlike the applicant who presented certificate of official search on the real owner of the suit land.

11. Mistake or error apparent on the face of the record has been defined in various judicial decisions. In the case of Muyodi vs Industrial & Commercial Development Corporation & Another [2006] 1 EA 243 the Court of Appeal described error apparent on the face of the record as follows: -“In Nyamogo & Nyamogo vs Kogo (2006) EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by a court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

12. The first issue that the applicant points out as error apparent on the face of the record in paragraph 1(c) of the judgement. Paragraph 1 (a) to (f) of the judgement contained the prayers in the plaint copied verbatim. It does not contain the decision of the court but quoted only as part of the background of the appeal.The applicant faults the court for not addressing its mind to the contents of paragraph 1(a) of the judgement as read together with paragraph 4 of the amended plaint as to whether the Plaintiff in the lower court was a beneficial owner or purchaser of the suit land. The evidence of the 1st Respondent in the trial court was that he bought the suit land from the deceased. Secondly, this matter came before this court as an appeal with grounds of appeal to be addressed. It has not been demonstrated that a ground of appeal around the issue of paragraph 1(c)of the judgement and paragraph 4 of the amended plaint was placed before the court for determination. However, most importantly I find that this issue goes to challenge the merit of the judgement. This can only be done by way of appeal to a higher court in this case, the Court of Appeal.

13. The second issue is on how the 2nd and 3rd Intended Interested Parties were removed from the proceedings. Firstly, the record of the trial court speaks for itself. On page 11 of the judgement sought to be reviewed this court found that from the record of the trial court, the 2nd and 3rd Intended Interested Parties had been removed from the proceedings and hence they were no longer parties and as such there was only one (1) appellant in the appeal that is the 1st appellant. Whether this finding was right on wrong can now only be questioned and determined in the Court of Appeal. My finding is that it does not amount to error apparent on the face of the record. The lower court record also shows that on 12th January, 2023 when the order removing the 2nd and 3rd Intended Interested Parties from the record was made, the applicant herein was represented in court and no protest was registered on the same. The record also shows that since the day they were removed from the record, the 2nd and 3rd Intended Interested Parties have never protested at all.

14. The last issue pointed out as part of the error apparent on the face of the record was the issue of ownership of the suit land. My view is that this matter concerns the merits of the judgement and not is not an error apparent on the face of the record.

15. I find that the ground for review of judgement have not been demonstrated. The application is dismissed.No orders as to costs as the application was not opposed.

16. Orders accordingly.

RULING, DATED AND SIGNED AT VIHIGA, READ VIRTUALLY THIS 7TH DECEMBER 2023 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGE.In the presence of:Ajevi- Court Assistant.Muhavi for the Appellant/Applicant.No appearance for the Respondents.