[2023] KEHC 23720 (KLR)

Njenga v Njoroge (Civil Appeal 55 of 2021) [2023] KEHC 23720 (KLR) (17 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23720 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 55 of 2021

SM Githinji, J

October 17, 2023

Between

Joseph Kang’ethe Njenga

Applicant

and

Miriam Njeri Njoroge

Respondent

(An Appeal from the Judgment in CM Child Case No.4 of 2017 Before Hon. (Dr) Julie Oseko – Chief Magistrate delivered at Malindi on 19th May, 2021)

Ruling

1. This finding is in respect of the Applicant’s notice of motion dated 20th March 2023 brought under Article 47(2) and 50(1) of the Constitution of Kenya, 2010; Section 80 of the Civil Procedure Act, Order 44 rule 1 and Order 45 rule 1 of the Civil Procedure Rules; Section 4 (1), (2) and (3) of the Fair Administrative Act, 2015; and Section 76 and 83 of the Children Act. The Applicant seeks the following orders; -1. Review of the learned judge’s ruling given on 8th February 2023. 2.A conservatory order and/or an order of perpetual injunction restraining the Respondent by themselves, their agents and/or the children and social services officers from interfering with the children’s place of abode, schools, church and or societies and clubs they belong to pending the hearing and determination of this application and appeal herein.3. Stay of decree and execution orders in force pursuant to the judgment issued on 19th May 2021. 4.The costs of this application be in the cause.

2. The application was supported by the affidavit sworn by the Applicant on 20th March 2023. The Applicant deposed that his submissions were excluded in the ruling dated 8th February 2023, and only became aware of this fact when he managed to obtain a copy of the ruling on 17th March 2023, after a series of follow ups with this court’s registry. That had his submissions been considered, the outcome of the ruling would have been different.

3. The Respondent opposed the application. She filed a Replying Affidavit dated 17th April 2023, wherein she deposed that the application is unmerited and only intended to delay the matter. She added that the application does not meet the conditions set out for granting an order for review. The Respondent deposed that she was never even served with the said submissions.

4. The Applicant filed another affidavit dated 30th May 2023 in response to the Respondent’s Replying Affidavit.

5. The application was canvassed by way of written submissions which I have perused. Having carefully considered the application, affidavits and submissions filed herein, I find that the sole issue for determination is whether this court should review the ruling dated 8th February 2023.

Analysis and Determination 6. In order for an application for review to succeed an applicant must show that there has been a discovery of new and important matter, or evidence that was not within his knowledge when the ruling or order was made; or existence of a mistake or error apparent on the face of the record; or for any other sufficient reason. This scope is well established under section 80 of the Civil Procedure Act, and Order 45 rule 1 of the Civil Procedure Rules, 2010 which read as follows; -Section 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; orb.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.Order 45 rule 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; orb.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.

7. When I consider the affidavits filed there is no evidence that the Applicant brought himself within the scope of section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules above, to warrant the court to make any orders necessary to vary the impugned ruling. This is because the Applicant argues that the Court failed to consider his submissions and that in effect his rights to a fair hearing and fair administrative action were breached. He draws this inference from his reading of the Ruling of the Court issued on 8th February 2023 where he asserts the Court did not consider his submissions.

8. In my considered view, the position taken by the Applicant gives rise to matters that would be good grounds for an appeal but not review. As I cannot sit on appeal against my own ruling, I find that the motion is devoid of merit. In the premises the motion dated 20th March 2023 fails and is dismissed with costs to the Respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 17TH DAY OF OCTOBER, 2023. S.M.GITHINJI...................................JUDGEIn the Presence of; -1. Miriam Njeri Njoroge2. Joseph Kang’ethe Njenga (absent)