[2022] KEHC 10145 (KLR)

Pan Africa Staff Sacco Society Limited v Muchungu; Vusha Onsembe & Mambiri Advocates (Interested Party) (Civil Appeal 491 of 2018) [2022] KEHC 10145 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10145 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 491 of 2018

JK Sergon, J

July 15, 2022

Between

Pan Africa Staff Sacco Society Limited

Appellant

and

David Kigatia Muchungu

Respondent

and

Vusha Onsembe & Mambiri Advocates

Interested Party

Ruling

1. This ruling is predicated on the Notice of Motion dated 11th November, 2021 taken out by the appellant/applicant and supported by the grounds set out on its body and the facts stated in the affidavit advocate Nicholas Ngumbi. The applicant sought for an order that this Honourable Court to review and/or set aside its ruling delivered on the 22nd of October, 2021.

2. There was no response to the application but there were brief oral arguments from the respondent and the interested party.

3. I have considered the grounds laid out on the body of the Motion; the facts deponed in the supporting affidavit and the brief oral arguments.

4. In its supporting affidavit, the applicant avers that it was granted leave to file a supplementary record of appeal in this matter on grounds that new evidence that was not available at the trial court at the time of filing of the record was discovered.

5. The appellant stated that interested party filed a Notice of Motion application dated 8th June 2021 where it sought an order from this court to expunge from the record the documents appearing as documents No.18 and contained at pages 101-122 of the appellant’s supplementary record dated 7th December,2020.

6. The applicant has pointed out that there was an error apparent on the face of the record because the ruling delivered by the Court on the 22nd October 2021 was contradictory as the facts rendered in the ruling did not support the conclusion reached by the court in its holding and that the court had established that the applicant had sought leave was granted to file the supplementary record of appeal on grounds that new evidence that was not available at the trial court was discovered after the appeal had been filed.

7. The applicant avers that in the ruling, this court observed that the interested party and the respondent would not be prejudiced in any way if the application dated 8th June 2021 was disallowed.

8. The applicant avers that the conclusion made in the holding of the Court’s ruling is contradictory and erroneous because the facts in the case do not support the conclusion reached in the holding.

9. The respondent argued that the appellant should abide with the orders given and that this case should be concluded as there is no need to review the ruling since there is no mistake.

10. The interested party submitted that the application by the interested party was to strike out the supplementary Record of Appeal on the basis that no leave was granted before filing the same and that this court’s ruling is not erroneous as it cannot review its ruling.

11. I have considered the application and the oral submissions made on behalf of the applicant, respondent and the interested party. I have also perused the court record and the judgment sought to be reviewed. I find that the only issue for my determination is whether the applicant has met the threshold for review of the ruling as proposed.

12. Order 45 Rule 1 of the Civil Procedure Rules (the Rules) sets out the prerequisites to the exercise of a court’s power of review which is donated under Section 80 of the Civil Procedure Act. A reading of Order 45 Rule 1 shows that for an applicant to succeed in an application for review, he must demonstrate to the satisfaction of the court the existence of any one of the following circumstances:i.That he has discovered a new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced at the time the decree or order sought to be reviewed was made;ii.That there was a mistake or error apparent on the face of the record; andiii.That there is sufficient reason to warrant the review sought and;iv.That the application was made without unreasonable delay.

13. Starting with the last condition, I find that in this case, I delivered the ruling sought to be reviewed on 22nd October 2021. The application was filed on 11th November 2021 about (19) nineteen days later. In my view, a delay of about nineteen cannot be said to be inordinate or inexcusable. I thus find that the application was filed without unreasonable delay.

14. The first condition is whether there was discovery of a new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced at the time. From the applicant’s application, there is no new and important matter that could not be produced by the applicants at the time when the Ruling was made. Indeed, all the issues raised in the present application were same ones raised when the application was canvassed and upon which the court arrived at its ruling.

15. In the case of Evan Bwire Andrew v Aginda Civil Appeal No. 147 of 2006 cited fin the case of Stephen Githua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR the Court of Appeal Held as follows:“An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.”

16. The second condition that this court ought to consider is if there is any mistake or error apparent on the face of the record. Turning to the grounds anchoring the motion, the applicant contends that in support of its decision to disallow this application ,this court cited the case of Attorney General v Torino Enterprises Limited [2019] eKLR which provides for instances in which courts admit evidence in an appeal.

17. Similarly, in the case of Nyamogo & Nyamogo v Kogo [2001] EA 170 cited in Veleo (K) Limitedthe court held as follows:“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a 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 a long drawn process of reasoning 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 apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal”

18. I therefore find no mistake or error that this court made on the face of the record.

19. Lastly the court has to consider if there is sufficient reason to review the court’s earlier ruling. The applicant has not elaborated any sufficient reasons to warrant a review of the court’s ruling.In the case of Sadar Mohamed v Charan Singh and another it was held that“Any other sufficient reason for the purposes of review refers to the grounds analogous to the other two (for example error apparent on the face of the record and discovery of new and important matter”)

20. The upshot of the foregoing is that the application dated 11th November 2021, lacks merit and is dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:............ for the Appellant............ for the Respondent............ for the Interested Party