[2022] KEHC 9925 (KLR)

Okal v Kenya Power and Lighting Company (Petition 240 of 2015) [2022] KEHC 9925 (KLR) (Constitutional and Human Rights) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9925 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 240 of 2015

HI Ong'udi, J

July 21, 2022

Between

Bethwel Allan Omondi Okal

Applicant

and

Kenya Power and Lighting Company

Respondent

Ruling

1. What is before court are two applications dated 24th April 2019 and 6th May 2019 respectively both filed by the petitioner against the respondent herein.

The first application 2. The First application has been brought pursuant to Articles 48 and 50 of the Constitution and is seeking orders:-1. Spent2. That this Honourable Court be pleased to hear the petitioner’s application for review as contained in this application pursuant to rule 25 of the chief justice practice and procedure rules 2013 (Mutunga Rules).3. That the Honourable Court be pleased to declare that the plea for review shall only be discharged when the judgment of 15th July 2016 shall be finally re-examined, re- heard, re-determined and done afresh to justify rule 25 of Mutunga Rules.4. That the Honourable Court be pleased to order a stay of execution of orders contained in the ruling of the 11th February 2019. 5.That this Honourable court be pleased to declare that the judgment of 15th July 2016 and the rulings of 11th February 2019 are hostile to the applicant and null and void as they did not employ the courts epistolary jurisdiction which requires that this court must act to put right the petitioner’s informal application.6. That this Honourable Court be pleased to declare that whenever a request to set aside an order pursuant to rule 25 of the Chief Justice Practice and Procedure Rules 2013 are applied for, the application remains unextinguished, alive, proper and relevant until a review of the judgment is done. In a nutshell the exit clause of rule 25 is found when the judgment is reviewed.7. That this Honourable court be pleased to order for a review of judgment on the premise of failure of the court to accord or adhere to the principle of procedural fairness by dint of Mutunga Rules violating the principle of legality.

3. The application is premised on the grounds on its face and the petitioner’s affidavit sworn on 24th April 2019. The summary of the grounds are, that;1. The judgment at paragraph 50 certified with the requirements of the constitution under Article 160 of the constitution;2. The direction of the judge could not supersede or attempt to ridicule and nullify the express provisions of the law;3. The principle of justice grants an open ended access to justice which the Court of Appeal stated in the Nguruman Case as to re-open an already concluded matter (Civil Application Number NA190 of 2013( UR/ 60/2013) and which Honourable Justice Limo declined to accept;4. The court did away with its own procedures thereby failing to observe the principles of fairness accorded by Mutunga Rules. Therefore the applicant’s legitimate expectation that the court rules will be followed was abused necessitating an action to nullify the decision;5. The court bestowed with epistolary jurisdiction acted malafides by failing to invoke rules 2 sub rule 3 and 4 which guarantee that any claim shall not be defeated because of lack of proper construction;6. The court’s decision of 15th July 2016 amounts to jurisdictional error known as procedural ultra vires being that procedure in Mutunga Rules was not followed; and,7. The court has blatantly refused and frustrated his application defeating the principle that the rule of law ensures and guarantees equality before the law.

4. In the affidavit the applicant reiterates the facts and the grounds on the face of the application adding that he is an indigent litigant. He avers that this court pursuant to Rule 10(3)(4) of the Mutunga rules ought to formalize the statements of an indigent litigant informal claim by rewriting the claim and not allow such inadequacies to be the source of dismissal of the claim.

5. He avers that, the provisions of access to justice as a constitutional right have been frustrated, denied and violated by the disregard of procedure and practice. That pursuant to rule 25 of the Mutunga Rules this court must act within the law and failure to act automatically violates the courts jurisdiction and that amounts to a miscarriage of justice.

6. The respondent filed grounds of opposition dated 17th February 2020. The grounds are that :-1. The Notice of motion application dated 24th April 2019 as drawn and taken out is misconceived, bad in law and is devoid of merit as against the respondents.2. The issues raised in the application are resjudicata thus untenable in law in accordance with section 7 of the Civil Procedure Act.3. The application has not raised any grounds for review under Order 45 of the civil procedure rules.4. The form of the application is generally wanting and the same does not deserve indulgence of this Honourable Court and amounts to an abuse of the court process.5. The application is an afterthought frivolous, vexatious and an abuse of this Honourable Court and meant to embarrass and or prejudice the respondents.

The second application 7. The second application seeks the following orders:-1. That the respondent produce in Court Sample Way Leave Document pursuant to Article 35(1) (b) and (2) of the constitution.2. That the produced Way Leave Document be used in the matter of verification of documents filed as evidence in the petition 240 of 2015 to authenticate and verify Way Leave Document previously filed.3. That the respondent if found to have fabricated or falsified the previous filed document be charged and convicted under section 110 of Penal Code Cap 63 Laws of Kenya.4. That Further To The Abovethe respondent be made to pay damages for violation of the Right to fair hearing, Access to justice and fair Administration Action of Article 50, 48 and 47 of the constitution.5. That Futhermorethe respondent act was in violation of Article 10 and 27(1) of the constitution particularly Rule of Law, equality and human dignity are of principle of Governance and the Right to equality before Law and Equal protection and equal benefit of the Law.

8. This application is premised on the grounds on the face of the application and on the petitioner’s affidavit. The grounds are, that;1. The sample Way Leave shall give this Court proper understanding and judgment of whether the fraudulent document on the record be discarded and treated as perjury;2. This court may discard previous court proceedings as one of dishonesty and improper and a violation of the rules of procedure;3. Fabricated or falsified document filed previously may be expunged from the records and the respondents proceedings be declared to be abuse of court process and contravention of Rule 11, 5 of Mutunga Rules.

9. In his affidavit, the applicant reiterates the facts and the grounds on the face of the application, and insists that the respondent filed a falsified and fabricated document in the petition 240 of 2015, made false affirmations on the falsified document and knowingly gave false testimony leading to violation of rule 5 of the Mutunga rules. Consequently compelling the respondent to produce a sample Way Leave Document, shall place this court in a position where it is informed and shall be able to compare with the previous filed document and make an informed determination to resolve the 2015 dispute.

10. The respondent filed grounds of opposition dated 17th February 2020 raising the following grounds that:-1. The Notice of Motion Application dated 6th May 2019 as drawn and taken out is misconceived, bad in law and is devoid of merit as against the respondents.2. The court is now functus officio with regard to prayers sought in the Notice of Motion Application dated 6th May 2019. 3.The issues raised in the application before this Honourable court are Res judicata thus untenable in law in accordance with section 7 of the Civil Procedure Act.4. The form of the application is generally wanting and the same does not deserve the indulgence of this honourable court and amounts to an abuse of the court process.5. The applicant’s notice of Motion is otherwise an afterthought frivolous, vexatious and an abuse of the process of this Honourable Court and meant to embarrass and or prejudice the respondents.

The petitioner’s submissions 11. The petitioner filed submissions dated 12th June 2019. He argued that the impugned decision given on 15th July 2016 was an abuse of the jurisdiction of this court. This is because the decision was arrived at in complete disregard of a filed fabricated and falsified Way Leave document by the respondent giving rise to error apparent on the face of record which the court ignored. He relied on Syed Yakoob v K.S. RadhaKrishna A.I.R 1964 S.C. 477 to buttress this point.

12. He argued that the judgment was given in bad faith despite the supplementary affidavit having been drawn and filed on 2nd October 2015 contesting the authenticity of the Way Leave document filed by the respondent on 10th July 2015. The said Way Leave document was showing a land registration No. L.R No. Kamagambo/ Kabouro/4612 which is owned by Mr. Ezekiel Otieno Owuor. This he says is an opposition to the suit which is 4680 giving rise to another ground for review based on discovery of new and important evidence which he filed on 7th October 2016.

13. He argued that pursuant to rule 25 of the Chief Justice practice and procedure rules 2013, he got an opportunity to produce newly discovered evidence which he filed on 7th October 2016. He relied on Tokeshi Mambili & Others Simion Litsanga (2004) eKLR for that argument. Therefore this court should declare that the respondent acted in abuse of court process and in contempt of court resulting in abuse of the rule of law and principle of legality.

14. He further relied on Halsbury’s Law of England 4th edition, Reissue at pg 277 and Republic v Nema 2 others exparte Green Hills investment Ltd & 2 others (2006) 2 KLR Page 501 for the issue of contempt of court.

15. He submitted that he did not find in the judgment any law that sanctions the use of fabricated evidence leaving him convinced that the rule of law was jeopardized and abused. He submits that this makes the judgment arbitrary and with a convincing measure of illegality, warranting nullification after the discovery of new and important matter (certificate of official search from Migori Lands Office).

16. He further submitted that when the Court assumed the question of authenticity of the purported way leave document he exposed the assurance that the principle of rule of law, namely the protection and promotion of all human rights and human dignity is universally accepted. He further submitted that the Court acted irrationally in disregarding and ignoring his further supplementary affidavit.

17. According to him, the rule of natural justice particularly the hearing rule, evidence rule and the rule against bias were never adhered to making the judgment to be arbitrary and irrational. Hence it should be declared nugatory to the rules of natural justice and be quashed, and invalidated. Further relying on Lloyd v McMahon (197) Ac 625 on natural justice, he urged this court to set aside the judgment of 15th July 2016.

18. Relying on In the matter of Pharmaceutical Manufacturer Association of S. Africa and another, In Re Exparte President of the Republic of S. Africa and other (2000) (2) SDA 674(CC); 2000 (3) BCLR 241 (CC) at para 90, he submitted that when error apparent on the face of the record is available such as the Wayleave document which is fabricated and falsified the Court cannot rely on it without it being authenticated.

19. Finally he urged the court to find the decision to be irregular and an abuse of the rules of natural justice and set it aside.

The respondent’s submissions 20. The respondent filed submissions dated 18th February 2020 by Mwaura Wachira advocates. On the first application, Counsel submitted that the prayer by the petitioner seeking to have the judgment delivered on 15th July 2016 reviewed is resjudicata. It is argued that the petitioner previously made a similar application dated 23rd August 2016 and the same was dismissed through a ruling delivered on 15th November 2017.

21. Counsel submits that the petitioner further seeks to review the ruling delivered on 11th February 2019. Relying on section 80 of the Civil Procedure Act and Order 45 Rule 1 of the civil Procedure Rules 2010 and Sadar Mohamed v Charan Singh and Another [1959] EA 793, Counsel submitted that the petitioner has not provided any new material to warrant review of the said ruling, as there is no mistake or error apparent on the face of record shown by the petitioner; and no other sufficient cause has been demonstrated. He contends that the Petitioner is indeed raising grounds of appeal which should be subjected to the right forum.

22. On the second application, counsel submitted that the court is now functus officio. He relied on Telkom Kenya Limited v Jon Ochanda (Suing on his own behalf and on behalf of 996 Former employees of Telkom Kenya limited) [2014] eKLR and argued that upon delivery of judgment, the rights of the parties were determined and it is a legal requirement that the decree emanating from the judgment should be executed.

Analysis 23. The petitioner filed a petition dated 2nd June 2015, and the same was determined vide a judgment dated and delivered on 15th July 2016 by Justice Lenaola (as he then was) who dismissed it as being untenable in law. He however pursuant to article 23 ordered the respondent to within 45 days conduct an assessment of any damages occasioned on the petitioner’s land and prepare a Crop Damage Report (CDR) within the same period. The respondent was thereafter tasked with paying compensation.

24. Being dissatisfied, the petitioner filed a review application dated 23rd August 2016 seeking review orders and to be granted leave to present fresh evidence pertaining to the loss of land due to a fraudulent way-leave; that the respondent committed perjury; that he be granted leave to provide evidence that the right to property and right to clean and health environment were violated. Vide a ruling delivered on 15th November 2017, Mativo J, (as he then was)dismissed the application holding that the issues raised did not fall within the scope for review.

25. Again being dissatisfied, the petitioner filed another application dated 29th November 2017 and another one dated 19th October 2018. Both applications were heard contemporaneously and vide a ruling delivered on 11th February 2019 by Chacha J, the applications were dismissed, on the grounds that the application of 29th November 2017 offended Order 45 Rule 6 of the Civil Procedure Rules and that the application was beyond the scope of the said Order 45.

26. Regarding the application dated 19th October 2018 the same was declined on the premise that it showed a separate cause of action distinct from what was presented in the petition; the issues raised having been brought way after the petition was heard and determined hence improper and incompetent. Further that there was no basis for making an award of damages against the respondents as no evidence was tendered to show that the respondent was responsible for the delay in hearing the review application and petition. The petitioner had raised the issue of delay during the pendency of his petition and application for review. It was also noted that the rules that were cited by the petitioner were out of context.

27. In a nutshell, it is the said ruling of 11th February 2019 delivered by Chacha J, and the judgment delivered by Lenaola J, (as he then was) on 15th July 2016 that the petitioner seeks review on in his first application. In the second application, he seeks to adduce evidence in a matter that was already heard, determined and judgment delivered.

Determination 28. Having carefully considered the parties’ pleadings and submissions I find the following to be the issues falling for determination: -

The first applicationi.Whether the application is resjudicata and whether it offends Order 45 rule 6 of the Civil Procedure Rules 2010ii.Whether the application has met the threshold to warrant the grant of review orders.

The second applicationiii.Whether the court has been rendered functus officio

The first application i. Whether the application is res judicata and whether it offends Order 45 rule 6 of the Civil Procedure Rules 2010 29. What the petitioner essentially seeks in the first application, is a review of the judgment delivered on 15th July 2016, a review of the ruling of 11th February 2019 and stay of execution of orders contained in the ruling of 11th February 2019. He also seeks a declaration that the said judgment and ruling are hostile, null and void and lastly that Rule 25 of the Mutunga Rules will be met when the judgment is reviewed.

30. The respondent in response to the said application submitted that the application is resjudicata and has not met the threshold for grant of the review orders sought. According to the respondent and from the record, the petitioner had previously made an application dated 23rd August 2016 to review the Judgment of 15th July 2016 but the application was dismissed vide the ruling delivered on 15th November 2017.

31. First and foremost, as set out in the background of the case, it is explicit that the petitioner is seeking a review of a review order just like, the one in the ruling of 11th February 2019. In both rulings of 15th November 2017 and 11th February 2019 respectively the petitioner sought to review the judgment of Lenaola J (as he then was) and the ruling of Mativo J (as he then was) and now the ruling of Mwita Chacha J.

32. The Civil Procedure Act Cap. 21 Laws of Kenya under section 7 provides for the doctrine of res judicata. It provides as follows:-7. Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and 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.Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation.(4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating

33. The rationale for this doctrine was discussed in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR where the court stated as follows:-“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”Further that,“... the general rule is that where a litigant seeks to re-open in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (The finality principle) outweighs the public interest in achieving justice between the parties (the justice principle) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because a competent tribunal has jurisdiction to decide wrongly, as well as correctly and if it makes a mistake its decision is binding unless corrected on appeal”

34. For operation of this doctrine in the case of E.T. v Attorney General & Another (2012), eKLR, the court stated;“53. For the operation of the doctrine of res judicata first, the issue in the first suit must have been decided by a competent court. Second, the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. Third, the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title (see the case of Karia and Another v The Attorney General and Others [2005] 1 EA 83, 89).

35. The court further stated,“57. The courts must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff is in the second suit is trying to bring before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and Others [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu v Wambugu and Another Nairobi HCCC No. 2340 of 1991 (Unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata ....’

36. In National Land Commission v Registered Trustee of the Arya Pratinidhi Sabha, Eastern Africa & another [2019] eKLR it was held;“For the doctrine to be successfully invoked the following elements must suffice and it has been held that they are conjunctive rather than disjunctive. In Kenya Commercial Bank Limited v Benjoh Amalgamated Limited (2017) eKLR, it was stated as follows,“The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

37. In his ruling of 15th November 2017 on the petitioner’s application dated 23rd August 2016, Mativo J (as he then was) declined to review the orders earlier on issued by the Court as that would amount to sitting on appeal of the Court’s decision. These were grounds of appeal he stated. The claims raised then were similar to what the Petitioner has raised in the present application.

38. The Learned judge further noted that the power of review was only available when there was error apparent on the face of the record. The judgment that was the subject of that application and which is now subject of this application does not suffer any error apparent on the face of the record. The issues raised were touching on the court finding, interpretation and application of the law, which could only be challenged by way of appeal. He lastly noted that the petitioner in the said application, had not demonstrated any sufficient reason within the meaning of the rules cited nor was it analogous or ejusdem generis to the other reasons stipulated in Order 45 Rule, Civil Procedure Rules.

39. In the application dated 29th November 2017 which led to the ruling of 11th February 2019, the judge noted that the applicant (petitioner herein) had an avalanche of complaints both at the decision delivered by Lenaola J (as he then was) on 15th July 2016 and the ruling delivered by Mativo J (as he then was) on 15th November 2015. He further noted that the application was substantially a replication of his grievances advanced in the Notice of Motion dated 23rd August 2016. Only that this time he has added into the mix his grievances against the ruling delivered by Mativo J, who found that the issues raised by the Petitioner were grounds of Appeal rather than grounds for review. He therefore disallowed the application for Review.

40. I do agree with the respondents that the issues raised are res judicata. Looking at this first application, it is clear that the petitioner is dissatisfied with the manner in which the petition and the two subsequent applications were handled. I associate myself with the Judges’ position that the issues raised are for appeal and not for review. I am guided by the holding in National Bank of Kenya Ltd v Ndungu Njau ( 1996) KLR page 469, where the Court of Appeal made the following guiding observations;“In my discernment, an order cannot be reviewed because it is shown that the Judge decided the matter on a foundation of an incorrect procedure and or that his decision revealed a misapprehension of the law or that he exercised his discretion wrongly in the case. Much less could it be reviewed on the ground that all other of co-ordinate jurisdiction and even the judge whose order is sought to be reviewed have subsequently arrived at different decisions on the same issue. In my opinion the proper way to correct a Judge’s alleged misapprehension of the procedure or substantive law of his alleged wrongful exercise for discretion is to appeal the decision unless the error can be apparent on the face of the record and therefore requires no elaborate argument to expose.”

41. Whether the application offends Order 45 Rule 6 of the Civil Procedure Rules, the said section provides as follows:-6. Bar of subsequent applications [Order 45, rule 6. ]No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.

42. It is therefore evident that pursuant to Order 45 Rule 6 Civil Procedure Rules, the petitioner cannot ask this court to review a review order. Hence the first application indeed offends the above cited provisions of the Civil Procedure Rules 2010.

ii. Whether the application has met the threshold to warrant the grant of review orders. 43. Section 80 of the Civil Procedure Act provides for review as follows:-80. ReviewAny 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.

44. Order 45 provides for Review. Rule 1 provides;1. Application for review of decree or order [Order 45, rule 1. ](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

45. Order 3 provides for when the court may grant or reject an order for review as follows;3. When court may grant or reject application [Order 45, rule 3. ](1)Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.(2)Where the court is of opinion that the application for review should be granted, it shall grant the same:Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.

46. In Francis Njoroge v Stephen Maina Kamore [2018] eKLR, the court stated:-Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist:-(a)There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or(b)There was a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons; and(d)The application must have been made without undue delay.

47. In above case, the court also cited with approval the case of Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, where 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)

48. On discovery of new evidence and an important matter which was not within the knowledge of the Appellant, the Court of Appeal in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR held that:“In Francis Origo & another v Jacob Kumali Mungala (C.A. Civil Appeal No.149 of 2001 (unreported), the High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review. This court stated:-“our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction. They have now come to a dead end. As for this appeal, we are satisfied that the learned Commissioner was right when he found that there was absolutely no basis for the appellant’s application for review. We have therefore no option but to dismiss this appeal with costs to the respondent.”We do not find it necessary to comment on the exercise of Court’s discretion on which counsel submitted because it was not an issue and in any case the appellant had not made out a case in that regard. Although the decision reached by Lesiit, J. was correct, it was however not based on the correct reasoning in that the application for review was premised on alleged error of law on the part of Njagi, J.We think Bennett J was correct in Abasi Belinda v. Frederick Kangwamu and another [1963] E.A. 557 when he held that:“a point which may be a good ground of appeal may not be a good ground for an application for review and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal”

49. On whether the petitioner/ applicant has met the threshold for grant of review orders in accordance with the conditions stipulated from the above cited provisions of the Civil Procedure Act Cap. 21 Laws of Kenya, the Civil Procedure Rules 2010, and case law, he has not satisfied the principles for the grant of review orders. The petitioner although pointing towards discovery of new material evidence has not demonstrated to this court that the said material could not be found during the hearing of the petition. This issue is not new. He had raised it in the application dated 23rd August 2016 and Mativo J (as he then was) dealt with it in the ruling of 15th November 2017. The petitioner has also not pointed out to this court any error apparent on the face of the record, neither has he shown any other sufficient cause or reasons as to warrant the grant of the review orders. I find no merit in the first application.

The second application iii. Whether the court has been rendered functus officio 50. The principle on functus officio was set out in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR Supreme Court of Kenya rendered itself thus:“(18)… Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality.According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.…The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”(19)This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550:“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 on adjudication must be taken to a higher court if that right is available” [emphasis supplied].” 51. In Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR the Supreme Court of Kenya held that:“It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law.”

52. In the second application, the petitioner wants this court to issue orders that the respondent produces in court a sample of the Way Leave Document pursuant to Article 35(1) (b) and (2) of the Constitution; that the produced Way Leave be used in the matter of verification of documents filed as evidence in this instant petition to authenticate and verify the Way Leave document previously filed; that if the previous one is found to be fabricated then they should be charged and convicted under Section 110 of the Penal Code and that the respondent be made to pay damages for violation of the right to fair hearing, access to justice and fair administration action.

53. Based on the above cited authorities, I do agree that this Court is now functus officio having heard the case plus applications and made determinations. It lacks the jurisdiction to grant the orders sought by the petitioner. The two applications have been heard and determined before by this Court. They are thus resjudicata. The only way out for the Petitioner/applicant to challenge the Judgment and Rulings of this court is by way of Appeal. He has been told this before by Mativo J, (as he then was)

54. The upshot is that the two applications dated 24th April 2019 and 6th May 2019 respectively lack merit and are dismissed with costs.Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 21ST DAY OF JULY 2022 AT MILIMANI NAIROBIH. I. ONG’UDIJUDGE OF THE HIGH COURT