[2022] KEHC 16700 (KLR)

Nyaga v Nyuya (Civil Case 03 of 2020) [2022] KEHC 16700 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16700 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Case 03 of 2020

LM Njuguna, J

December 14, 2022

Between

Mary Ann Warue Nyaga

Applicant

and

Philip Nyaga Nyuya

Respondent

Ruling

1. The matter for determination before the court is an application dated October 19, 2022 wherein the applicant sought for orders that:i.Spent.ii.That the honourable court be pleased to review and/or set aside the consent order issued on October 4, 2021 and all consequential orders.iii.That the costs of this application be borne by the respondent.

2. The application is premised on the grounds on its face and it’s supported by the affidavit of Maryann Warue Nyaga.

3. The applicant in a nutshell avers that an order issued by this court on October 4, 2021 after an adoption of a mediation agreement was erroneous as the same was unlawfully and illegally authored by Dr Hellen Njoroge, the mediator. That the said order is in the process of being implemented and yet the same does not reflect the parties’ agreement during the mediation process. It was her case that a serious injustice shall be occasioned if the order is not reviewed as it does not reflect the parties’ agreement, and as authored, the same favours the respondent.

4. The respondent filed grounds of opposition dated November 18, 2022 wherein he states that the application is hopeless, bad in law and an abuse of the court process.

5. The court gave directions that the application be canvassed by way of written submissions and only the respondent complied with the order.

6. The applicant avers that the resultant report on the mediation process was erroneous as the same was unlawfully and illegally authored by Dr Hellen Njoroge, the mediator. That the court order that was entered pursuant to the mediation agreement is in the process of being implemented and yet the same does not reflect the parties’ agreement during the mediation process. It was her case that a serious injustice shall be occasioned if the order is not reviewed as it does not reflect the parties’ agreement and as authored since the same favours the respondent. That this court be pleased to review the said order for the reason that the same was not signed by the parties to the mediation process.

7. The respondent submitted that this court cannot review the said orders for the reason that mediation as an alternative dispute resolution mechanism is a lawful process recognized by law. That this court lacks the jurisdiction to review the said orders for the reason that no good reason has been presented by the applicant for it to do so. This court was thus urged to dismiss the application herein.

8. The application is brought under the section 3(3) of the Law of Contract Act and section 3A of the Civil Procedure Act and it seeks to set aside/review a consent order.

9. Section 80 of the Civil Procedure Act is on review and it provides 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 judgement to the Court, which passed the decree or made the order, and the Court may make such order thereon as it thinks fit”

10. The procedure is set out in the procedural legislation under order 45 of the Civil Procedure Rules 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(c.)on account of some mistake or error apparent on the face of the record, or(d)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.”

11. An error within the meaning of section 80 and order 45 of the Civil Procedure Act was defined in the case of National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal as thus:-“A review may be granted wherever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law”.

12. The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd v Ndungu Njau (1979) eKLR.“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”

13. As indicated above, a review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed; the underlying object of this provision is neither to enable the court to write a second judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.

14. Where an applicant in an application for review seeks to rely on the ground that there is discovery of new and important evidence, one has to strictly prove the same. In the case ofStephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & Another (2018) eKLR the Court of Appeal stated as follows:“We emphasize that an application based on the ground of discovery of new and important matter or evidence will not be granted without strict proof of such allegation.”

15. In the same breadth, the Court of Appeal in the case of Rose Kaiza v Angelo Mpanju Kaiza (2009) eKLR held that not every new fact will qualify for interference of the judgment. In this case, the applicant states that this court issued orders after an adoption of a mediation agreement which was erroneous as the same was unlawfully and illegally authored by Dr Hellen Njoroge, the mediator. Further that, the parties herein did not sign the said agreement and therefore the adoption of the said agreement is unlawful. In my view, the applicant has not disputed being a party to the said process, further, it has not been presented before this court the alleged correct version of the mediation agreement that the parties allegedly agreed to, save for the applicant becrying that what was adopted is not what was presented before the court. As the old adage goes, he who alleges must prove; it was incumbent upon the applicant to bring her case before this court with all the evidence to prove it and not to drag the respondent back to court after having undergone a lawful process that all parties were agreeable to.

16. As I have already stated in this ruling, the statutory grounds upon which orders for review can be obtained are; firstly, there ought to exist an error or mistake apparent on the face of the record. Secondly, that the applicant has discovered a new and important matter in 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 order was made. Thirdly, that there is sufficient reason to occasion the review.

17. To the statutory grounds, may also be added instances where the applicant was wrongly deprived of an opportunity to be heard or where the impugned decision or order was procured illegally or by fraud or perjury:[ See Serengeti Road Services v CRBD Bank Limited [2011] 2 EA 395]. In the case herein, the applicant submits that the order adopted by the court was unlawful and illegal but does not show or produce any evidence as to how the same is illegal or unlawful.

18. Also to be included as part of sufficient reason is where the impugned order if reviewed, would lead the court in promoting public interest and enhancing public confidence in the rule of law and the system of justice: [See Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited (supra).

19. It is practically impossible to itemize what would be ‘sufficient reason’ for purposes of review under the courts’ ‘’residual jurisdiction’’ or inherent powers. The exceptional instances when obvious injustice would be propagated by a strict adherence to the terms of the order or decree as originally passed are copious.

20. However, given that a review application is not an appeal and neither must it be allowed to be an appeal in disguise where the merit is revisited, ‘sufficient reason’ ought to include, in my view, the statutory grounds for review as outlined in the Civil Procedure Rules. That ought to be the starting point and a fine guideline.In Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:“In Nyamogo & Nyamogo v Kogo (2001) 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 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 the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” (Emphasis mine)

21. In Chandrakhant Joshibhai Patel v R [2004] TLR, 218 it had been held that an error stated to be apparent on the face of the record:“...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions."

22. In my humble view therefore, I find that:i.The application before the court is bereft of merit and is hereby dismissed.ii.Costs to the respondents.

23. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022. L NJUGUNAJUDGE……………………………………...for the Applicant……………………………………for the Respondent