[2015] KEHC 7442 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 34 OF 2013

REPUBLIC……………………………….…………….......................……………APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS………....................................1ST RESPONDENT

INSPECTOR GENERAL,NATIONAL POLICE SERVICE…….........…….2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL……....................................3RD RESPONDENT

THE DIRECTOR, CRIMINAL INVESTIGATIONS DEPARTMENT………4TH RESPONDENT

EX PARTE

GEORGE PETER OPONDO KALUMA

RULING

In these judicial review proceedings Peter Kaluma is the Ex Parte Applicant. The Director of Public Prosecutions (DPP), the Inspector General of the National Police Service and the Director of Criminal Investigations Department are the 1st, 2nd and 3rd respondents respectively. The Law Society of Kenya, Constantine George Sphikas, Deborah Achieng Aduda and Florence Dorothy Syanoi Kibera Moschion are the 1st to 4th interested parties in that order.

In a judgment delivered on 31st March, 2014 this Court dismissed the Ex Parte Applicant’s notice of motion dated 14th February, 2012 in which he had sought judicial review orders in respect of the respondents’ decision to charge him with criminal offences in regard to complaints made by the 2nd and 3rd interested parties.

The Ex Parte Applicant immediately thereafter filed the Notice of Motion application dated 3rd April, 2014. Among the papers filed in opposition to that application is the respondents’ Notice of Preliminary Objection dated 27th August, 2014.

Counsel for the respondents had wanted to argue the Notice of Preliminary Objection prior to the hearing of the Ex Parte Applicant’s Notice of Motion but on 16th February, 2015 the Court directed that the Notice of Preliminary Objection be heard together with the Ex Parte Applicant’s Notice of Motion. As the Notice of Preliminary Objection is to the effect that this Court has no jurisdiction to hear the Ex Parte Applicant’s application, this issue must first be dispensed with in order to decide on the next course of action.

The respondents’ Notice of Preliminary of Objection is as follows:

“1) The Court has no jurisdiction to entertain the Notice of Motion or grant the orders sought therein.

2) The Notice of Motion offends the mandatory provisions of sections 8 & 9 of the Law Reform Act (Cap 26).

3) The Notice of Motion is incompetent, bad in law and incurably defective.

4) The Notice of Motion is an abuse of the Court Process.”

In support of the Notice of Preliminary Objection, Mr Okello for the respondents submitted that the Law Reform Act is clear that once parties have been heard and a decision rendered in a judicial review application, the only recourse is appeal. In support of this argument, he cited a ruling delivered by Wendoh, J on 3rd December, 2009 in Nairobi H.C. Misc. Application No. 690 of 1997, Sankale Ole Kisotu & ten others v Ntulele Group Ranch & another in which the learned Judge stated that:

“The Judicial Review Jurisdiction is donated by section 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya and Order 53 Civil Procedure Rules, provides the procedure. Section 8(3) of the Law Reform Act prohibits, a return, or review and provides for an appeal to the Court of Appeal…..

In the case of KURIA MBAE V THE LAND ADJUDICATION OFFICER CHUKA H MISC APP. 257/1987 Mbito and Mango, JJ held that one is only entitled to an appeal to the Court of Appeal from the decision of the High Court in Judicial Review applications. I upheld that decision in CHARLES SHIKANGA & OTHERS V BETTING CONTROL LICENSING BOARD H MISC 1023/05 and dismissed an application where the court was asked to review or set aside its final orders in Judicial Review. I do agree with the Respondent’s contention that in Judicial Review there is no return, review or staying of the Court’s orders but there is a right of appeal available under S 8(5) of the Law Reform Act. In essence this Court is being asked to sit an appeal of a decision of a Judge of coordinate jurisdiction. That is not available in law or in Judicial Review.”

On the strength of the cited decision and other authorities the respondents urged this Court to down its tools as was advised by the Supreme Court in Samwuel Kamau Macharia & another v Kenya Commercial Bank Limited and 2 others [2012] eKLR that without jurisdiction a Court cannot entertain any proceedings.

The Ex Parte Applicant and the interested parties did not honour the respondents with any reply to their Notice of Preliminary Objection.

Is recourse to appeal the only avenue for setting aside a judicial review order? Previous decisions like those cited by the respondents appear to state that a decision on the substantive notice of motion in a judicial review application is final and can only be overturned on appeal. Those decisions appear to be supported by Section 8(3) of the Law Reform Act, Cap 26 which states:

“No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section.”

However, in light of the current jurisprudence there is new thinking anchored on the understanding that a court can correct mistakes in its decisions. The Ex Parte Applicant has invoked the inherent jurisdiction of the court. Inherent jurisdiction of the court empowers the court to do that which is just to the parties that appear before it.

Although it is often said that the other rules of procedure found in the Civil Procedure Rules, 2010 are not applicable to judicial review proceedings, the truth of the matter is that whenever the inherent jurisdiction is invoked, the guiding principles to be applied are those ordinarily found in the Civil Procedure Rules, 2010. The court does not deploy its inherent jurisdiction in a vacuum. There are principles which guide the exercise of inherent jurisdiction. Even where the court exercises its discretion, it must do so judiciously and what is judicious is found in the established legal norms.

In Nairobi High Court, Miscellaneous Application JR No. 294 of 2011, Jitesh Shah & Highland Textiles Limited v Nairobi District Lands Registrar,G. V. Odunga, J set aside his decision to dismiss the ex-parte Applicant’s substantive notice of motion. He then went ahead and allowed the prayers in the substantive notice of motion which he had dismissed. He explained the basis for reviewing his judgement as follows:

“However, the mere fact that a party cites the wrong provisions of the law ought not to deprive the Court of a jurisdiction where such jurisdiction exists. The Court of Appeal in Nakumatt Holdings Limited vs. Commissioner of Value Added Tax [2011] eKLR held that the superior court in the matter before the court has the residual power to correct its own mistake. Accordingly, where a mistake is shown to have been committed which is remediable by the Court the same ought to be corrected by the Court in the exercise of its inherent jurisdiction and not necessarily under section 3A of the Civil Procedure Actwhich strictly speaking does not apply to judicial review proceedings. That section in any case does not confer inherent jurisdiction on the Court but only reserves the same.”

I agree with the learned Judge that a party should not be made to undergo the rigours of an appeal where a review of a court’s decision can serve the same purpose. For instance, a judgement entered without the participation of an interested party should be set aside in exercise of the inherent jurisdiction of the court. In the same vein, a judgment in a judicial review matter can be reviewed on the traditional grounds for reviewing a court’s judgement in civil cases. For the reasons aforesaid, I find the respondents’ Notice of Preliminary Objection dated 27th August, 2014 unmerited. The same is therefore dismissed.

The Ex Parte Applicant through the Notice of Motion dated 3rd April, 2014 seeks orders as follows:

“a) This application be certified urgent and be heard ex parte in the first instance.

b) The Honourable Court in the exercise of its inherent jurisdiction be pleased to grant an order suspending the taking of plea, prosecution or further proceedings in MILIMANI CASE NO. 111 OF 2013: REPUBLIC VS. GEORGE PETER OPONDO KALUMA pending inter partes hearing of this application.

c) The Honourable Court be pleased to review its decision herein and allow the application for judicial review as prayed in the Notice of Motion dated 14th February, 2013 and/or issue such other or further orders as the Honourable Court may be pleased to order.

d) Costs.”

The application is supported by the grounds on its face, the supporting affidavit sworn by the Ex Parte Applicant on 3rd April, 2014 and a further affidavit sworn by the same Ex Parte Applicant on 26th July, 2014.

The respondents opposed the application through grounds of opposition dated 15th May, 2014 and a replying affidavit sworn by Police Constable Abdi Mohamed Ali on 1st September, 2014. The respondents also filed the Notice of Preliminary Objection dated 27th August, 2014, which I have already dispensed with.

The 2nd and 3rd interested parties opposed the application through replying affidavits sworn on 8th May, 2014 and 20th August, 2014 by the 2nd Interested Party, Constantine George Sphikas. The 1st and 4th interested parties did not take part in the application for review.

From the papers filed in Court, the Ex-parte Applicant’s case is that new issues have arisen in the matter which though very material to the just determination of the action for judicial review were not known to the counsel for the Ex Parte Applicant at the time the proceedings were taken and were therefore never brought to the attention of the Court. It is the Ex Parte Applicant’s case that the 2nd and 3rd interested parties have since filed civil cases against the 4th Interested Party. One of the cases is Milimani HCCC No. 340 of 2012, Constantine George Sphikas v Dorothy Seyanoi Moschion in which the 2nd Interested Party has sued the 4th Interested Party seeking compensation in respect to the money forming the basis of the intended criminal prosecution. The Ex Parte Applicant admits that this particular matter was filed before the filing of the judicial review action and was duly pleaded.

Another case is Milimani Civil Case No.1047 of 2013, Deborah Achieng Aduda v Dorothy Seyanoi Moschion in which the 3rd Interested Party has sued the 4th Interested Party seeking recovery of the sum that forms the basis of the criminal case.

The Ex Parte Applicant stated that the law firm in which he is a partner represents the 4th Interested Party who is the Defendant in both cases. The Ex Parte Applicant averred that these civil cases are lying in court without the 2nd and 3rd interested parties taking any action to have them prosecuted. It is the Ex Parte Applicant’s assertion therefore that his threatened prosecution is a patent abuse of the criminal justice process to force civil settlement.

Further, that the 2nd and 3rd interested parties have also filed two complaints with the Law Society of Kenya Disciplinary Committee. The Ex Parte Applicant averred that in Disciplinary Cause No. 144 of 2012, Debora Achieng Aduda v John Wamiti Njagi & Peter Kaluma the complainant who has never been his client has applied to the Disciplinary Committee to intervene and stop the Ex Parte Applicant from bribing judges, magistrates and prosecutors in what she terms “upcoming cases” against the 4th Interested Party. According to the Ex Parte Applicant the alleged “upcoming cases” have turned out to be Milimani Criminal Case Nos. 1133 and 1134 of 2012and several other cases instigated by the 2nd and 3rd interested parties against the 4th Interested Party and her previous advocate. The Ex Parte Applicant averred that he has been representing the 4th Interested Party in the matters directly and through the law firm in which he is partner.

It is the Ex Parte Applicant’s claim that upon realizing that Disciplinary Cause No. 144 of 2012, Debora Achieng Aduda v John Wamiti Njagi & Peter Kalumawas destined for dismissal, the 2nd and 3rd interested parties filed Disciplinary Cause No. 200 of 2013, Constantine George Spikas v Peter Kaluma.

The Ex Parte Applicant stated that in this particular cause, the 2nd Interested Party has applied to have him suspended from the legal profession for his alleged failure to inform him that the 4th Interested Party is a criminal/fraudster. He further revealed that the disciplinary proceedings have been heard and were only awaiting the pronouncement of the decision by the Disciplinary Tribunal.

The Ex Parte Applicant contended that the proposed prosecution is intended to intimidate and disable him and his firm from representing the 4th Interested Party.

The Ex Parte Applicant averred that the 1st and 2nd interested parties had also complained to the office of the Inspector General of Police that he wanted to deport the 2nd Interested Party from the country, this notwithstanding the fact that he has no power to deport anybody. The Ex Parte Applicant further deposed that the 2nd and 3rd interested parties also went to the offices of the Director of Immigration where they reported that he wanted to deport the 2nd Interested Party. They did not stop there but also went to the offices of the then Minister for Immigration Services (Honourable Otieno Kajwang) and made the same complaint.

Further, that the 2nd and 3rd interested parties had lodged a complaint with the Public Complaints Commission (Office of the Ombudsman) complaining that the Ex Parte Applicant was defending the 4th Interested Party in Milimani Criminal Case Nos. 1133 and 1134 of 2012 while knowing that she is a criminal/fraudster. According to the Applicant, the complaint to the Ombudsman was followed by a complaint to the Judiciary Ombudsman. In the complaint to the Judiciary Ombudsman, they now claimed the Applicant’s spouse is the reason the 4th Interested Party cannot be convicted in the criminal cases against her.

The Ex Parte Applicant averred that in furtherance of their malice and upon realizing the complaints are nonstarters, the 2nd and 3rd interested parties then lodged a complaint with the Judges and Magistrates Vetting Board against the Applicant’s spouse. This was done despite the fact that the Ex Parte Applicant’s spouse is unknown to them and has nothing to do with them.

It is the Ex Parte Applicant’s claim that in furtherance of their unexplained malice and upon realizing that they were never taken seriously by the authorities to whom they previously complained, the 2nd and 3rd interested parties had lodged a new complaint with the Criminal Investigations Department claiming that he wants to deport and kill the 2nd Interested Party. As a consequence the Ex Parte Applicant had been summoned to the Criminal Investigations Department to record a statement on this complaint.

The Ex Parte Applicant asserted that in the audio recording in his possession and to be produced at the trial, the 2nd and 3rd interested parties and their conspirators now claim they have gotten access to the President to personally deal with him.

In addition, the Ex Parte Applicant averred that the decision to prosecute him was only made after he filed Milimani Civil Case No.567 of 2012, Peter Kaluma v Constantine Sphikas, Deborah Achieng Aduda & another on 30th November, 2012 seeking damages for defamation against the complainants in the proposed charges. It is therefore the Ex Parte Applicant’s conclusion that the prosecution is meant to coerce him to drop his civil case.

The Ex Parte Applicant also faults the DPP on the ground that the offences with which he is threatened to be charged with are alleged to have taken place on diverse dates between January, 2012 and May, 2012 but the DPP did not and has not bothered to explain why the charges are being brought over two years after the alleged commission of the crimes and over twenty months of representing the 4th Interested Party and her previous Advocate in Milimani Criminal Case Nos. 1133 and 1134 of 2012.

It is the Ex Parte Applicant’s case that while the judgment of the Court was pending, the 2nd and 3rd interested parties wrote to the 4th Interested Party stating they would drop the cases and all complaints against the Ex Parte Applicant if the 4th Interested Party settled their civil claims. This shows that the proposed criminal charge is an afterthought aimed at forcing civil settlement and settling inexplicable personal differences between the 2nd and 3rd interested parties on the one hand and the 4th Interested Party and her advocates on the other hand.

Turning to this Court’s judgement, the Ex Parte Applicant submitted that there are errors of law and fact on the face of the judgement. It is the Applicant’s argument that the law relating to grant of the orders of prohibition and certiorari in matters such as this has long been settled in several decisions of the High Court and the Court of Appeal.

The Ex Parte Applicant then proceeded to cite various decisions in support of this assertion. He referred the Court to the case of Republic v. Attorney General & Others Ex-parte Kipng’eno Arap Ngeny, Misc. Civil Application No. 406 of 2001, in which the High Court stated thus:

“Although we must constantly remind ourselves that the Attorney General is not subject to control in the exercise of his power to prosecute criminal offences, we are of the view that he must exercise that power upon reasonable ground. It is an affront to our sense of justice as community to allow the prosecution of individuals on flimsy grounds. Although in this application we cannot ask the Attorney General to prove the charge against the accused, there must be shown some reasonable grounds for mounting a criminal prosecution against an individual. There must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will achieve nothing more than embarrass the individual and put him to unnecessary expense and agony. The Court may, in a proper case, scrutinize the material before it and if it is determined that no offence has been disclosed, issue a prohibition halting the prosecution. It is in these matters an abuse of the process of court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal difference between individuals. Evidence of prosecution for extraneous purposes may also be presumed where prosecution is mounted after a lengthy delay without any explanation being given for that delay.”

The second decision cited by the Ex Parte Applicant is that of Jared Benson Kangwana v. Attorney General, Nairobi High Court Miscellaneous Application No. 446 of 1995 in which it was stated that:

“It is, therefore, immaterial whether the prosecution reasonably suspects that an offence has been committed because that is not an issue in prohibition. The test is whether there are circumstances which will make the proceedings an abuse of the process of the Court…..The Court should ask whether its process is being fairly invoked.”

The third authority cited by the Ex Parte Applicant wasRepublic v Chief Magistrate’s Court at Mombasa, Ex Parte Ganijee & another [2002] 2 KLR 703where at 707 Waki, J (as he then was) quoted with approval the statement inSaina Vincent Kibiego v The Attorney General, High Court Miscellaneous Application No. 839 and 1088 of 1999that:

“So it is not the purpose of a criminal investigation or a criminal charge or prosecution, to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other and ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice. No one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth.”

The Ex Parte Applicant also cited the decision in Floriculture International Ltd and others v Attorney General, Misc Civil Application No 114 of 1997where it was held that it is as much in the public interest that breaches of the law should be detected, punished, redressed and prevented, as it is to ensure that the process of redressing wrongs and violations of the law has been done with due regard to the rights and freedoms of the individual. Further, that any prosecution commenced must serve a purpose for that is the only way that members of a society can respect the law.

The Ex Parte Applicant proceeded to pinpoint what in his view were the factual and legal errors in the Court’s judgement. He submitted that the Court erred in law and fettered its discretion in holding that “[i]t is always presumed that the DPP is equipped with skills and tools of analysing a case and deciding whether the same should be prosecuted or not. An attempt by this court to analyse the evidence of the witnesses would amount to taking over the legal mandate of the DPP. It would also amount to taking over the power vested on a magistrate’s court to hear and determine certain criminal cases.”

In the Ex Parte Applicant’s view, there would be no application for prohibition or certiorari in respect of criminal charges if this were the position of law. He asserts that in determining whether the criminal justice process was being properly invoked or was being abused as complained by the Ex Parte Applicant in the judicial review action, the Court was required to consider the charge against the evidential material upon which the prosecution is proposed to be based. He postulated that the Court needed to ask itself whether the proposed criminal charges are sustainable and this could not be done without considering the charges themselves and the material placed before the Court by the prosecution as basis thereof.

The Ex Parte Applicant then proceeded to analyse the charges and the proposed evidence to be used in the trial and concluded that there was no shred of evidence to support the charges against him. It is his case that he had not known or met the 3rd Interested Party who is the alleged complainant in the 1st count against him. It is his evidence that he only met her for the first time on 1st August, 2012 during taking of plea in Milimani Criminal Case Nos. 1133 and 1134 of 2012, Republic v Florence Dorothy Seyanoi Moschion & John Wamiti Njagi.This, according to the Ex Parte Applicant, was also the first time he was meeting John Wamiti Njagi who was the 4th Interested Party’s previous advocate.

Still on the complaint of the 3rd Interested Party, the Ex Parte Applicant averred that the matter of the sale transaction was made known to him for the first time on 7th June, 2012 when the firm in which he was a partner was instructed by the vendor to take it up from the previous joint advocate for the parties. It is his evidence that by the time he was being instructed, the sale had been negotiated (the offers and acceptances given), a Sale Agreement drawn and executed by the parties and money payable as deposit under the transaction paid. He averred that the money was never transferred to him or the law firm in which he was partner.

It is the Ex Parte Applicant’s case that he could not conspire with the 4th Interested Party whom he did not know to offer land he did not own for sale to the 3rd Interested Party who he did not know. Further, that the prosecution did not exhibit and has not exhibited the “offer” it alleges he made to the complainant.

As for the second count, the Ex Parte Applicant submitted that the lease in question was brought to their law firm already drawn by the 2nd Interested Party and their work was merely to witness it and later aid in its registration. The Ex Parte Applicant therefore asserted that he could not offer a lease which was already negotiated and drawn to the 2nd Interested Party.

Further, that the money allegedly paid to the 4th Interested Party was neither paid through their law firm nor was the law firm or the Ex Parte Applicant consulted on the payments. He asserted that the prosecution did not or has not placed before the Court the offer, it alleges in the charge sheet, the Ex Parte Applicant made to the 2nd Interested Party.

On the third count it is the Ex Parte Applicant’s assertion that the particulars of the proposed charge states that on diverse dates between 29th February, 2012 and 17th April, 2012 at Nairobi County, with intent to defraud he obtained Kshs.313,000/= from the 2nd Interested Party by falsely pretending that he was in a position to represent him to enter into an agreement for the lease of plot No. 5892/22 measuring ten acres situate in Karen a fact he knew to be false.

It is the Ex Parte Applicant’s case that he was qualified to practice as an advocate at the material time and he could not therefore “falsely pretend to be in a position to represent” any person. Further, that the 2nd Interested Party has never been his client.

The Ex Parte Applicant denied that Kshs. 313,000/= was paid to their firm by the 2nd Interested Party as legal fees and stated that only Kshs.163,000/= was received from the 2nd Interested Party as deposed in the 2nd Interested Party’s affidavits filed elsewhere. Of that amount, Kshs.105,000/= was towards stamp duty as per the Agreement for Sale drawn by the 2nd Interested Party and the same was duly remitted to the collector of stamp duty and a receipt issued in acknowledgement of the payment. The balance of Kshs.58,000/= was paid to the 4th Interested Party as prepaid rent and the same was included in the Lease Rental Agreement executed by the parties.

The Ex Parte Applicant submitted that it has never been a crime under the laws of this country to act as an advocate on instructions of a party and to allow his prosecution on matters such as this would be tantamount to making it a crime to serve as an advocate.

It is the Ex Parte Applicant’s position that the Court also erred in holding that “I do not think that the Ex Parte Applicant can be protected from answering for private wrongs through the civil process” without first establishing, even if prima facie, that the Ex Parte Applicant had indeed committed any wrong.

In addition, the Ex Parte Applicant asserted that the Court erred in determining that:

“Even if the Applicant had established grounds for the issuance of judicial review orders, no orders would have issued because he failed to comply with the mandatory requirement of Order 52 Rule 3(2) which provides that:

“The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the Court and on all parties to the proceedings”

By the time the Applicant filed this application he already knew that Criminal Case No 111 of 2013 had been opened for him in the magistrate’s court. He ought to have enjoined the magistrate’s court in these proceedings but he failed to do so. Any order prohibiting prosecution ought to be directed at the trial court for implementation.”

The Ex Parte Applicant argued that his application for judicial review neither relates to proceedings before the Magistrate’s Court nor does he seek to compel the Magistrate’s Court to do any action in relation to the proceedings or quash the proceedings in the Magistrate’s Court or any orders made therein. It is his case that he has no complaint against the Magistrate’s Court or its proceedings or orders. It is his submission that in fact, not even plea has been taken in the said Criminal case No. 111 of 2013.

It is the Ex Parte Applicant’s case that failure to serve the application is never fatal to an action for judicial review but is only a cause for the Court at the hearing to adjourn proceedings and order that necessary parties be served as provided under Order 53 Rule 3(4) of the Civil Procedure Rules.

The Ex Parte Applicant also faulted the Court’s determination that:

“According to the Applicant, all public officers he has come across are corrupt. He has however not placed any evidence before the court to support his allegations. Had the Applicant adduced evidence of the allegations of bribery there would be a basis for allowing this application. There is however no evidence placed before the court to support the Applicant’s claim that his prosecution was commenced for extraneous purposes”

In order to show why the Court erred in making this statement, the Ex Parte Applicant asserted that his Verifying Affidavit at paragraphs 19–22 he had averred that the 2nd Interested Party had made the claims of bribery against the specific officers mentioned and not “all public officers the Applicant has come across” as the judgment erroneously states. He submitted that his averment in the Verifying Affidavit is confirmed by the audio recording, which was previously unavailable but is currently in his possession. The Ex Parte Applicant therefore applied to have the recordings played in Court. He also contended that judicial review action is not about the corrupt practices alleged but whether the criminal justice process is being invoked rightly in this matter.

The Ex Parte Applicant also stated that he served in a partnership firm and that firm continues to handle the matters in question even in his absence. Further, that the Kshs.163,000/= paid for stamp duty and other disbursements, which the 2nd Interested Party falsely claim was fees, was made to the law firm. The Ex Parte Applicant therefore argued that the prosecution needed to explain why he is being targeted for prosecution and not the other partners in the firm.

The Ex Parte Applicant believes that there are sufficient reasons to warrant review. To allow his prosecution on the proposed charges would militate against the law and judicial precedent.

The Ex Parte Applicant averred that in her statement, the 3rd Interested Party explained that she sought, approached and negotiated with the proprietor of the subject property directly, came up with the draft Agreement for Sale and paid the alleged deposit of the purchase price. Nowhere does she mention that the Ex Parte Applicant or his law firm was involved in the process.

The Ex Parte Applicant averred that in his statement recorded with the police the 2nd Interested Party explained how he saw the property advertised, approached the property agent before approaching the proprietor and negotiating and coming up with the Lease Agreement. Further, that affidavits sworn by the 2nd Interested Party confirmed that he had taken and enjoyed possession of the property, the subject matter of the lease.

The respondents opposed the application through the grounds of opposition dated 15th May, 2014 as follows:

“1. This court having delivered its judgment on 31st March 2014 is now functus officio and has no jurisdiction to entertain the current application.

2. There is no provision in law that allows the court to sit on revision of its own judgement unless it is to correct an error on the face of the judgment that would render the judgment unenforceable.

3. Without prejudice to the foregoing, the applicant has failed to demonstrate when the discovery of “new matters” referred to in the grounds and Supporting Affidavit came to this attention. The case mentioned by the applicant i.e. HCCC 340 of 2012 and the Disciplinary case No. 144 of 2012 are matters that clearly the applicant was aware of or must have been aware their existence. Indeed HCCC 340 of 2012 was raised in the applicants was considered by this court in its judgment of 31st March 2014.

4. The law is clear that a civil matter based on the same facts cannot be a reason to prohibit criminal a trial (CPC 193 A).

5. The disciplinary action taken against the applicant is not a bar to charging him with a felony such as the ones he is facing.

6. As the court observed in its judgment, the applicant then, even now, made numerous allegations which were not substantiated. An example is at para 16 of the applicant’s Supporting Affidavit that he discovered the reason behind the decision to prosecute him was made intimidate him to drop his case in HCCC 567 of 2012. The DPP made it clear that the decision to prosecute is made upon perusal of the evidence and its sufficiency to sustain the proposed charges and nothing else.

7. The current application by the applicant re-argues his Notice of Motion dated 14th February 2012, a clear abuse of the court process when the applicant has the right of appeal to the Court of Appeal if dissatisfied with the court’s judgement of 31st March 2014.

8. In the supporting Affidavit, paragraph 5 to 7, the applicant pleads his defence to the charges filed against him. The mandate of a judicial review court is not to take over the role of the trial Magistrate. In any case, these are the same issues that were canvased in the application that was dismissed.

9. Paragraph 18 of the Supporting Affidavit are matters of law and not fact and should be expunged from the affidavit.

10. On his own admission even on a Without Prejudice basis the applicant has come up with settlement options which in the spirit of reconciliation can only be done with the complainants and then the DPP to be notified for consideration. The settlement options cannot be a basis for the court to vacate its judgment of 31st March 2014.

11. The applicant cites errors of law and fact on the face of the judgment which errors should rightly form the basis of and grounds of his appeal.”

Through the replying affidavit sworn on behalf of the respondents by Police Constable Abdi Mohamed Ali the respondents asserted that the purported material or information in the Ex Parte Applicant’s custody was all along in his possession prior to the delivery of the judgement of this Court. Constable Ali averred that he personally delivered all the documentary evidence, including the witness statements annexed to the Ex Parte Applicant’s further affidavit regarding his criminal case, to his law firm office in the company of his colleague Mark Ndiema of CID Land Fraud Investigation Unit in 2013 and the Applicant’s clerk acknowledged receipt of the same.

Constable Ali deposed that the Ex Parte Applicant has been charged with offences known to the law and the prosecution has enough evidence to charge him, not due to his position as an advocate, but as a conspirator with the proprietor of the subject property. He further averred that any evidence meant to vindicate the Ex Parte Applicant should be canvassed in the criminal court and not in this court. Also that the trial court is best suited to deal with the quality and sufficiency of the evidence gathered to support the charge. In addition, he deposed that it would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of the trial court.

The respondents revealed that Ex Parte Applicant had already taken plea before the Magistrate’s Court and a hearing date had already been fixed. Constable Ali averred that the trial court is sufficiently empowered under Section 89(5) of the Criminal Procedure Code to determine the issues in question and the Ex Parte Applicant only needs to move the trial court to strike out the charge for being incompetent, if he truly believes so.

The respondents accused the Ex Parte Applicant of being economical with the truth by referring to the witness statements selectively. Constable Ali exhibited a further statement recorded by the 3rd Interested Party on 20th June, 2012 implicating the Ex Parte Applicant in connection with the offences with which he is charged. Further, that the Ex Parte Applicant had conveniently omitted the statements of the 2nd Interested Party, which was in his possession prior to the judgment herein, detailing how the Ex Parte Applicant was involved with the proprietor of the subject property in a conspiracy to defraud the 2nd Interested Party.

The respondents’ case is that the Ex Parte Applicant was engaged as the 2nd Interested Party’s advocate to finalize the draft Lease Agreement and to commission it and that the Ex Parte Applicant also undertook to register the Lease Agreement at the Lands Office.

Constable Ali exhibited documents showing that the Ex Parte Applicant had acknowledged receiving money amounting to Kshs.313,000/= as stated in the particulars of the charge sheet and there is a statement of one Mr John Kamau Njoki confirming that fact.

On the Court’s finding that the Ex Parte Applicant had made allegations of corruption against public officers, Constable Ali deposed that the Ex Parte Applicant had indeed made the allegations and the Court was merely pronouncing itself on the Ex Parte Applicant’s outrageous allegations.

It is the respondents’ case that this application for review does not disclose any proper grounds to warrant the issuance of the orders sought as the Ex Parte Applicant has not demonstrated any new and important evidence, which was not within his knowledge or which could not be produced at the time the judgment was delivered. The respondents hold the opinion that if the Ex Parte Applicant is aggrieved by the judgment then he should exercise his right of appeal.

The respondents asserted that they acted within their respective mandates under the relevant establishing legislation and in the circumstances it cannot be said that their action was in breach of the mandate vested upon them or that the criminal justice system is being used to compel settlement of civil disputes. It is the respondents’ position that the application for review is unmeritorious, frivolous, an abuse of the court process and ought to be dismissed with costs.

Through the affidavits of the 2nd Interested Party, the 2nd and 3rd interested parties’ case in opposition to the application is that all the facts concerning this matter were well known to the Ex Parte Applicant prior to the delivery of the judgement of this Court. Further, that besides these judicial review proceedings there have been a series of other cases litigated involving the Ex Parte Applicant and the 2nd to 4th interested parties and the Ex Parte Applicant appeared as a party or an advocate on record in those matters and the alleged new material/information was previously filed in those matters and known to the Applicant. Those matters were litigated before this Court issued the judgment in these proceedings.

The 2nd and 3rd interested parties presented similar arguments to those of the respondents on the viability of this application for review.

The 2nd Interested Party averred that the Ex Parte Applicant misrepresented his original statement to the CID as his statement stated that the Ex Parte Applicant assisted the proprietor of the property which he sought to lease to defraud him by extracting significant amounts of prepaid rent from him. At that time the Ex Parte Applicant who was engaged as his advocate was misrepresenting to him that his lease was in the process of being registered at the Lands Office while knowing that the lease was not capable of registration. After he discovered the fraud he was locked out of the leased property. The 2nd Interested Party deposed that he had recorded a supplementary statement with the CID that highlights the actions of the Ex Parte Applicant in specific detail.

The 2nd Interested Party averred that the Ex Parte Applicant received from him Kshs. 313,000/= as reflected on the charge sheet and he had evidence of this payment. It is the 2nd Interested Party’s case that the Ex Parte Applicant had also misrepresented his statement regarding possession of the property in question. He deposed that he was entitled to possession of the property upon signing of the Lease Agreement but before he could physically move in and occupy the property after signing the Lease Agreement, he was locked out from the property on 20th May, 2012 by the proprietor (4th Interested Party) after having paid rent amounting to Kshs. 6. 9 million for 2012 and part of 2013.

The 2nd Interested Party averred that the Ex Parte Applicant has made several allegations of bribery against various public officers and the Court’s comment on those allegations was not erroneous. The 2nd Interested Party cited in his further affidavit the many incidents which he called “consistent pattern of making…..false allegations repeatedly before various courts in order to confuse the courts”, in which the Ex Parte Applicant had made outrageous allegations against public officers.

The 2nd Interested Party deposed in response to all the averments of the Ex Parte Applicant and urged this Court to find that the application for review is not merited.

The issue for the determination of the Court is whether a review of the judgment of this Court is merited in the circumstances of this case.

An application for review of a judgment is grounded on Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 which provides that:

“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.”

From the said provision it is therefore apparent that an order or decree can be reviewed where an applicant has discovered new and important evidence which was not available at the time the decree was passed. An order of review is also available where there is a mistake or error apparent on the face of the record or for any other sufficient reason.

I will proceed to consider each of these grounds for review and make my decision as to whether the Ex Parte Applicant has met the conditions for review of his judgement.

The Ex Parte Applicant’s case is that he has come across evidence that was not available to him at the time of the hearing of the substantive notice of motion. He asserted that when he was charged in court after the dismissal of his substantive application herein, he was given the statements of the persons proposed to testify against him. He referred to the statements of the 2nd and 3rd interested parties herein who are the complainants in the criminal case and contended that nowhere in those statements is he mentioned as having committed any offence.

The respondents answered the Ex Parte Applicant’s claim that there was new evidence through the replying affidavit sworn by PC Abdi Mohamed Ali. The police officer swore that all the witness statements were in the custody of the Ex Parte Applicant prior to the delivery of the judgment in this case. The police officer was specific that he personally delivered all the witness statements to the office of the Ex Parte Applicant in 2013.

The 2nd Interested Party on his part averred that all the material the Ex Parte Applicant alleges came to his knowledge after the delivery of the judgement in these proceedings was all along available to him either as a party or an advocate in the various cases filed before the Law Society of Kenya Disciplinary Tribunal and the courts.

The averments of Constable Ali and the 2nd Interested Party were not rebutted by the EX Parte Applicant. I have gone through the Ex Parte Applicant’s substantive notice of motion and the affidavits together with the annexures filed in the current application and I cannot pinpoint any evidence that can be said to be new.

For a decision to be reviewed as a result of the discovery of new and important matter or evidence, that evidence ought not to have been brought before the Court in the previous proceedings. That is the only way the evidence can be said to be new. You cannot repackage evidence that had been previously placed before the Court and then claim that the same is fresh evidence.

The evidence or material must not only be novel, it must also be important. It should be evidence that can easily make the judge who made the decision agree that had the evidence been available at the time of making the decision then the decision would not have gone the way it had. Additionally, the evidence should not be evidence that came into existence after the decision was made for such evidence can only be the subject of new litigation.

In order to succeed on this ground of review, an applicant must also demonstrate that after the exercise of due diligence, the evidence or material was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made. It is the duty of an applicant to show that he exercised due diligence. It is not enough for an applicant, like the Ex Parte Applicant has done in this case, to simply say he has new evidence that was not available at the time the court made the order. The manner in which the new evidence has come to the attention of an applicant must be stated and the reason why that evidence could not be accessed at the initial hearing ought to be explained.

In this case, the Ex Parte Applicant averred that some audio evidence showing that the 2nd Interested Party had claimed that he had bribed some people so that the Ex Parte Applicant could be charged is now available and he would like to tender the same as evidence in Court. He has not bothered to explain how he came into possession of that evidence and why the same was not available when he filed these judicial review proceedings. The Ex Parte Applicant did not also demonstrate through his affidavit how the audio evidence is important. If the evidence is meant to establish that the 2nd Interested Party boasted of how he had bribed public servants so as to have the Ex Parte Applicant prosecuted, then that evidence is not new and neither is it important as the Ex Parte Applicant had made the same averments in his Verifying Affidavit in support of the application for leave.

It is my finding therefore that there is no new and important evidence that is now available to the Ex Parte Applicant and which was not available to him at the hearing of his application for judicial review orders. He has thus not established that he is entitled to review on the ground that there is new and important evidence or material.

The second ground for review is where there is some mistake or error apparent on the face of the record. I must state at this stage that a review is not an appeal. This ground is therefore limited to review on the grounds that there are errors that can be seen on the face of the record. The error can be factual or legal.

The Ex Parte Applicant pinpointed in detail what he believes to be the factual and legal mistakes or errors apparent on the face of the judgement of this Court. It is not my business to consider the validity of my judgement. What I only need to do is to consider whether the errors pointed out by the Ex Parte Applicant are mistakes or errors on the face of the record.

The Ex Parte Applicant cited various authorities to show that a prosecution commenced contrary to public policy and in abuse of power should be quashed. He faulted my statement that:

“It is always presumed that the DPP is equipped with skills and tools of analysing a case and deciding whether the same should be prosecuted or not. An attempt by this court to analyse the evidence of the witnesses would amount to taking over the legal mandate of the DPP. It would also amount to taking over the power vested on a magistrate’s court to hear and determine certain criminal cases.”

In his view, there would be no application for prohibition or certiorari in respect of criminal charges if this were the position of law. He asserts that in determining whether the criminal justice process was being properly invoked or was being abused as complained by the applicant in the judicial review action, the Court was required to consider the charge against the evidential material upon which the prosecution is proposed to be based. He postulated that the court needs to ask itself whether the proposed criminal charges are sustainable and this cannot be done without considering the charges themselves and the material placed before the court by the prosecution as basis thereof. It is his assertion that this Court did not discharge its obligation in that regard.

Looking at the alleged error and going back to my judgement, I find that I stated as follows:

“Under Article 157 (6) of the Constitution the 1st Respondent (DPP) is granted prosecutorial powers in the following words:

“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).”

The powers should, however, be exercised in compliance with the Constitution and the laws of the country. Although Article 157 (10) of the Constitution provides that the DPP shall not be under the direction or control of any person or authority in exercising his powers, Article 157(11) of the Constitution states that in exercising his powers the DPP “shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process”. This Court therefore has a duty of ensuring that the DPP has applied his powers in accordance with the Constitution. Although the DPP has discretion in deciding whether to prosecute or not to prosecute an alleged offender, the discretion should be exercised legally and reasonably………

I am of the view that this Court indeed has the authority to check any abuse of power by the DPP.

Although this Court has supervisory jurisdiction over the exercise of prosecutorial powers by the DPP, the Court should exercise such power in situations where it is clearly shown that the DPP is using his powers unconstitutionally, unlawfully or irrationally.”

At this juncture is when I made the statement which the Ex Parte Applicant considers to be an erroneous legal opinion. I, however, did not stop there but proceeded to look at the evidence and concluded that:

“The parties have by way of affidavits placed a lot of information before this Court. The affidavits give contradictory accounts of what happened. An attempt by this Court to reach a finding on the evidence will amount to deciding a criminal case on affidavit evidence. It is only the trial court which can make such a decision after hearing the evidence of the witnesses.”

Before making that determination, I had cited a guiding principle as enunciated by the Court of Appeal as follows:

“The Court of Appeal powerfully put across this message in MEIXNER & ANOTHER v ATTORNEY GENERAL [2005] 2KLR 189 when it stated that:

“As the learned judge correctly stated, judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power.

Having regard to the law, we agree with the finding of the learned judge that the sufficiency or otherwise of the evidence to support the charge of murder goes to the merits of the decision of the Attorney General and not to the legality of the decision. The other grounds which the appellants claim were ignored ultimately raise the question whether the evidence gathered by the prosecution is sufficient to support the charge.

The criminal trial process is regulated by statutes, particularly, the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards stipulated in Section 77 of the Constitution to be observed in respect of both criminal prosecutions and during trials. It is the trial court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. Had leave been granted in this case, the appellants would have caused the judicial review court to embark upon an examination and appraisal of the evidence of about 40 witnesses with a view to show their innocence. That is hardly the function of the judicial review court. It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.”

As stated by the Court of Appeal in the above cited case, judicial review is about the decision making process and not a review of the decision itself.

I may not have cited the legal authorities which, the Ex Parte Applicant has now cited, but I explained the legal principles governing the quashing and prohibition of criminal proceedings and looked at the evidence that had been placed before the Court and concluded that the orders sought by the Ex Prate Applicant were not available in those circumstances. Even upon reviewing the statements of the witnesses and the affidavits filed by the parties in this application it emerges that the Ex Parte Applicant may have colluded with the 4th Interested Party to defraud the 2nd and 3rd interested parties. Whether this is true or not can only been answered through a criminal trial.

The existence of civil proceedings is no bar to criminal prosecution so long as the criminal prosecution is not being used to propel the civil matter to the benefit of one of the parties. In this case, I was not convinced by the Ex Parte Applicant that the criminal proceedings are in any way being used to force the settlement of the civil disputes.

According to the Ex Parte Applicant, another erroneous legal pronouncement in the judgement is my statement that:

“Even if the Applicant had established grounds for the issuance of judicial review orders, no orders would have issued because he failed to comply with the mandatory requirement of Order 52 Rule 3(2) which provides that:

“The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the Court and on all parties to the proceedings”

By the time the Applicant filed this Application he already knew that Criminal Case No 111 of 2013 had been opened for him in the magistrate’s court. He ought to have enjoined the magistrate’s court in these proceedings but he failed to do so. Any order prohibiting prosecution ought to be directed at the trial court for implementation.”

In my view, that is a self-explanatory statement of my understanding of the law which could only be tested through an appeal. Whether or not that statement is wrong cannot be a matter for review.

The Ex Parte Applicant went ahead and cited another statement which he believed was an erroneous statement of fact. That statement is as follows:

“According to the Applicant, all public officers he has come across are corrupt. He has however not placed any evidence before the court to support his allegations. Had the Applicant adduced evidence of the allegations of bribery there would be a basis for allowing this application. There is however no evidence placed before the court to support the Applicant’s claim that his prosecution was commenced for extraneous purposes”

In order to fully understand the context in which that statement was made, I will first of all reproduce the entire paragraph in which that statement appeared. It read as follows:

“The Applicant’s application and the supporting documents are full of allegations which he has not substantiated. He makes serious allegations of corruption against public servants without any iota of evidence. According to the Applicant, all the public officers he has come across are corrupt. He has, however, not placed any evidence before the Court to support his allegations. Had the Applicant adduced evidence of the allegations of bribery, there would be a basis for allowing his application. There is however no evidence placed before the Court to support the Applicant’s claim that his prosecution was commenced for extraneous purposes.”

This particular determination was necessary for two reasons. The first reason is that the Ex Parte Applicant had alleged that his prosecution was based on an extraneous factor namely the proffering of bribes to the Director of Public Prosecutions, the Director of CID and the prosecutor at the Chief Magistrate’s Court. Secondly I had cited a decision that where a prosecution was commenced for a dishonest reason like consideration of the payment of a bribe, such a prosecution should be quashed. I was thus not satisfied on the material placed before the Court by the Ex Parte Applicant that his prosecution had been commenced for a dishonest reason.

There was also a statement by the Ex Parte Applicant that the DPP had not explained why he took over two years to charge him with offences allegedly committed in 2012. On this particular submission, it is noted that maybe the Ex Parte Applicant has forgotten, but it does no harm to remind him, that he is the one who stalled his prosecution when he filed these proceedings and obtained a stay order in February, 2013. He cannot now turn around and blame the DPP for his delayed prosecution. It is important for parties in judicial proceedings to at least maintain the minimum standards of honesty.

I have demonstrated, although it was not necessary, that all the statements which the Ex Parte Applicant believes were based on erroneous facts or principles of law were indeed based on sound footing.

For an application for review to succeed, it is not enough for a party to hold a different opinion from that of the court on certain legal points. It is also not enough for an applicant to demonstrate that there is an arguable appeal.

In Muyodi v Industrial & Commercial Development Corporation & another E.A. L.R. [2006] 1 EA 243, the Court of Appeal defined a mistake or an error apparent on the face of the record as follows:

“In Nyamogo and 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 a 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 apparent on the face of the record even though another view was also possible. Mere 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.”

An applicant can only succeed if there is evidence of a mistake or error that is so clear and does not require much explanation. Otherwise, controversial statements and findings in a court’s judgment are for resolution by an appellate court and are not meant for review. As was stated by G. V. Odunga, J in Benson Bernard Mbuchu Gichuki v Kenneth Kiagiri Mwangi & another [2012] eKLR, “[a] review, it has been stated time without a number, is not and should not be a substitute for an appeal since the grounds for an appeal are not necessarily the same as grounds for review.”

The learned Judge also correctly pointed out in the same judgement that:

“A review is not an avenue by parties to fill in the blanks that were left during the hearing, but which were, due to negligence, inadvertence, or even accident, omitted. To do so would defeat the well-known legal maxim that litigation must come to an end.”

In Gurbachan v Yowani Ekori [1958] E.A. 450, the Court of Appeal for Eastern Africa, while considering the doctrine of res judicata, at page 453 cited a passage from the judgement of the Vice-Chancellor in Henderson v Henderson (1), 67 E.R. 313at page 319 where it was stated that:

“In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.”

Although that statement was made in regard to the doctrine of res judicata, I find that the same holds true in regard to the guidelines for allowing an application for review of an order or decree. I concur with Odunga, J and the cited decision of the Court of Appeal for Eastern Africa that a review of a decree or order is not meant to grant a losing party an opportunity of overturning the decision of the court through a repackaging of the matter and citation of additional authorities. In fact, what the Ex Parte Applicant has done is to reargue his substantive notice of motion.

The final ground for review of an order or decree is where there is sufficient reason for doing so. In Michael Mungai v Ford Kenya Elections & Nominations Board & 2 others [2013] eKLR the Court stated:

“A decree or order may also be reviewed for any sufficient reason. In our opinion, sufficient reason can only be deduced from the facts and circumstances of a particular case before the court. For example, in the case of NGORORO v NDUTHA & ANOTHER [1994] KLR 402the Court of Appeal held that any person, though not party to a suit, whose direct interest is affected by a judgement is entitled to apply for review. Such a reason can be ‘sufficient reason’ for the purposes of Order 45 Rule 1(1) for reviewing a decree or an order. An applicant must indeed place convincing evidence before a court for the court to be satisfied that there is sufficient reason to review its decision.”

The grounds for reviewing a judgement for any sufficient reason will vary from case to case. An applicant must give compelling reasons which will make the court back paddle on its earlier decision. The fact that the decision is likely to be overturned on appeal is not a good reason for reviewing a judgement. The Ex Parte Applicant in this case may have strong grounds for overturning this Court’s judgement on appeal but those grounds cannot form the basis for reviewing the Court’s judgement.

It is not enough for an applicant to state, as the ex-parte Ex Parte Applicant has done in this case, that the court’s decision contradicts decisions in similar matters. That may be a perfect reason for setting aside the judgment on appeal but it is not sufficient reason for reviewing the reasoning of a judgment. In any case, the appellate machinery is the appropriate forum for resolving conflicting judgements of courts of coordinate jurisdiction.

As already stated, the Ex Parte Applicant has only succeeded in having his matter reheard. This Court has no jurisdiction to rehear a matter in which it has made a decision. It can only review a decision on the grounds and for the reasons already stated. In this case the Ex Parte Applicant has failed to meet the threshold for review of an order or decree. His Notice of Motion application dated 3rd April, 2014 is therefore dismissed. There will be no order on costs.

Dated, signed and delivered at Nairobi this 1st day of July, 2015.

W. KORIR,

JUDGE OF THE HIGH COURT