[2023] KEHC 18384 (KLR)

Osman v Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 2 others (Petition 139 of 2015) [2023] KEHC 18384 (KLR) (Constitutional and Human Rights) (30 May 2023) (Ruling)

Neutral citation: [2023] KEHC 18384 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 139 of 2015

AC Mrima, J

May 30, 2023

Between

Egal Mohamed Osman

Petitioner

and

Cabinet Secretary, Ministry of Interior & Co-Ordination of National Government

1st Respondent

Attorney General

2nd Respondent

Director of Immigration

3rd Respondent

Ruling

1. This court delivered its judgment in the Petition on April 28, 2021 wherein the Petition was dismissed.

2. Being dissatisfied, thepetitioner filed an application by way of a Notice of Motion dated August 16, 2021. The application sought to review the judgment on the ground of an alleged error apparent on the face of the record. The error being that the court failed to consider some submissions that settled the fact that the petitioner was not a prohibited immigrant.

3. The petitioner filed written submissions whereas the respondents left the matter to the discretion of the Court.

4. Review entails a courtmaking a departure from its earlier finding on an issue. A court may do so on its own motion or upon application by a party. Review is discretionary.

5. In exercising such discretion, the court must abide by the principles established for the exercise of such powers either by the law or settled judicial precedents.

6. The power of review in the High Court is anchored in the Civil Procedure Act, cap. 21 of the Laws of Kenya and the Civil Procedure Rules, 2010.

7. Section 80 of the Civil Procedure Act 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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

8. Order 45 Rule 1 of the Civil Procedure Rules, 2010 further provides for review in the following manner: -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.

9. Courts have severally dealt with the issue of review. The Supreme Court in Application No. 8 of 2017, Parliamentary Service Commission v Martin Nyaga Wambora & others[2018] eKLR, quoted with approval the findings of the East Africa Court of Appeal in Mbogo and another v Shah [1968] EA, upon establishing the following principles: -(31)Consequently, drawing from the case law above, particularly Mbogo and another v Shah, we lay down the following as guiding principles for application(s) for review of a decision of the court made in exercise of discretion as follows:i.A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this court.ii.Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the court;iii.An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.iv.In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the court, how the court erred in the exercise of its discretion or exercised it whimsically.v.During such review application, in focus is the decision of the court and not the merit of the substantive motion subject of the decision under review.vi.The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:a.as a result, a wrong decision was arrived at; orb.it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.

10. The Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya v Ndungu Njau observed as follows in respect of reviews applications: -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 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 proceeds on an incorrect expansion of the law.

11. The import of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was considered by the High Court in Miscellaneous Application 317 of 2018, Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR. Upon considering comparative jurisprudence, the Court crystallized the principles for consideration in reviewing its own decisions as follows:i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x.The power of a civil court to review its judgment/decision is traceable in section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.

12. Returning to the case at hand, and on the above guidance, it is apparent that the petitioner is challenging the manner in which the court assessed and analyzed the evidence and the record thereby arriving at the impugned decision.

13. This court remains alive to the settled principle that an erroneous order/decision cannot be corrected in the guise of exercise of power of review.

14. Having said so, the Petitioner’s recourse lies on an appeal. In view of the contention that the Petitioner was not made aware of the delivery of the judgment herein contrary to the record, this court will nevertheless accord him that window.

15. In the end, the following orders do hereby issue: -a.The Notice of Motion dated August 16, 2021 is hereby dismissed with costs.b.The petitioner is hereby granted leave to lodge an appeal against the judgment of this court delivered on April 28, 2021. The appeal may be lodged within 30 days of this order.c.The petitioner is equally granted leave to appeal against this ruling, if need be.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 30TH DAY OF MAY, 2023. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:N/A for the PartiesRegina/Chemutai – Court Assistants.