[2022] KEELRC 3845 (KLR)

Republic v Minister for Lands and Settlement & 2 others; Orinda ( Suing as the Administrator of the Estate of Raphael Midhodho) (Exparte); Guya (Interested Party) (Environment & Land Miscellaneous Case E015 of 2021) [2022] KEELRC 3845 (KLR) (28 July 2022) (Ruling)

Neutral citation: [2022] KEELRC 3845 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Miscellaneous Case E015 of 2021

A Ombwayo, J

July 28, 2022

In the Matter for an Application for Leave to Apply for Judicial Review by way of Certiorari and Prohibition And In the Matter of the Land Adjudication Act Chapter 284, Laws of Kenya And In the Matter of the Land Registration Act, 2012 And In the Matter of Fair Administrative Action Act And In the Matter of the Parcel of Land Known as Siaya/Nyangoma/4754

Between

Republic

Applicant

and

Minister for Lands and Settlement

1st Respondent

District Land Adjudication /Settlement Officer, Bondo

2nd Respondent

Bondo Sub County Land Registrar

3rd Respondent

and

Austine Okoth Orinda ( Suing as the Administrator of the Estate of Raphael Midhodho)

Exparte

and

William Odongo Guya

Interested Party

Ruling

Brief Facts 1. The matter for determination herein is the interested party’s application dated January 26, 2022 and filed on January 28, 2022 under order 22 rule 22, order 8 rule 3, order 45 rule 1 and 2 of the Civil Procedure Rules2010 and sections 63 (e) and 80 of the Civil Procedure Act. The interested party sought for the following orders:1. That the application herein be certified as urgent and service be of the same to be dispensed with in the 1st instance.2. That the honourable court be pleased to grant stay of execution of its judgment/decree delivered on the January 21, 2022 and all consequential orders therein.3. That the honourable court be pleased to review and set aside its judgment/decree of the January 21, 2022 and all consequential orders therein.4. That upon review and setting aside the judgment/decree the ex parte application to be dismissed.5. That the costs of this application be provided for.

2. The application was based on grounds that there is sufficient reason for review, there is discovery of a new and important matter or evidence, there is an error apparent on the face record and it is in the interest of justice that the orders sought herein be granted and that no prejudice will be occasioned to the parties if the orders sought are granted. The Application was supported by the affidavit of William Odongo Guya which was filed on January 28, 2022 where he deposed and stated that on July 2, 2021, he filed his replying affidavit in opposition to the ex parte applicant’s application dated June 29, 2021.

3. He stated that on July 5, 2021, the registry sent them an invoice of payments which was made the same day through mpesa and on August 25, 2021, the ex parte applicant served them with his written submissions and on September 21, 2021, he filed his submissions via e-filing.

4. It was the interested party’s case that on January 21, 2022, his advocates on record received an email from court forwarding judgment dated January 21, 2022 and the court did not consider his replying affidavit nor submissions as the said judgment only relied on the evidence of the ex-parte applicant and ignored clear evidence by the interested party.

5. That it was clear from the replying affidavit and the interested party’s submissions that there was no way a title deed would have been issued once the appeal was lodged and if there is any title not proved then the same was obtained illegally and irregularly contrary the section 28 of the Land Adjudication Act which clearly states that a restriction shall be registered in the land affected by the appeal until the same is determined.

6. The interested party further stated that no title could have been obtained legally on the suit land effective the date when the appeal was lodged and he is distressed why the court did not take into account his evidence which is clear on the issues in this suit. He stated that he has suffered serious damages and will continue to do so as the judgment herein was issued without consideration of his evidence and failure to consider evidence which as on record amounts to an error on the face of the record which should be corrected.

7. The ex parte applicant herein filed a replying affidavit on February 21, 2022 in response to the application where he stated that he has seen the email alluded by the interested party and the same makes reference to a replying affidavit as being forwarded to the court’s email registry for assessment.

8. That as per the email dated July 5, 2021 the same shows that the interested party’s email of 2nd July had been received and was advised to pay Kshs 185/- as the court fees. That from the unmarked email annexed by the interested party, it is evident that he paid the requisite fees on the replying affidavit.

9. He stated that he had looked at all the annexures filed by the interested party and none of the annexures allude to the fact that the interested party ever forwarded his written submissions to the court for assessment of court fees and/or filing and the assertion that the same was forwarded to court is not supported by any evidence. He also stated that he is unaware on the date when the interested party filed his submissions in court as the same was never served upon his advocates on record.

10. It was the ex parte applicant’s case that his submissions were served upon the interested party on August 25, 2021 and the same was received and stamped and both parties were notified via email of the said judgment. That the judgment was founded on the pleadings filed by both parties and there is no evidence that points to the effect that the interested party’s replying affidavit was never considered by the trial court.

11. He stated that courts are not bound by the submissions filed by the parties given that submissions are not evidence but summary of a party’s case and the trial court did not error in arriving at the decision it did arrive on as the judge’s consideration was based on facts on evidence and the law.

12. It was stated that the interested party has not demonstrated or proved any loss that he alleges to have suffered or continues to suffer. He stated that the present application is an attempt by the interested party to re-litigate on issues that have been determined by this court as there is no new evidence or any error apparent on the face record or reason to set aside the findings of this court.

13The ex parte applicant further stated that the condition for grant of stay as sought by the applicant had not been met and therefore the instant application is incompetent and should be dismissed with costs. The respondents herein did not file a response to the application. This court directed that the application be canvassed by way of written submissions.

Interested Party’s Submissions 14. The interested party herein filed his submissions on February 25, 2022 where it was stated that the court in its judgment sated that the appeal was filed 7 years later contrary to the evidence on the record by the interested party which confirms that the appeal was lodged within 8 days from the date of dismissal of the objection which was within time.

15. It was stated that the evidence of the interested party and the submissions of the interested party was not considered at all despite the fact that the same was properly filed and were on record. It was submitted that the right to be heard is a valued right and it would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being offered an opportunity to be heard. Reliance was placed in the case of civil appeal No 211 of 1996 National Bank of Kenya Ltd v Njau Ndungu and Misc application No 2 of 2015ELCC Omulele &Tolo Advocates v Mount Holdings Ltd and also civil appeal No 178 of 2002 Kiai Mbaki & Others v Gichuhi Macharia &another.

16. The interested party prayed that the application be allowed as prayed.

Ex Parte Applicant’s Submissions 17. Theex parte applicant filed his submissions on March 2, 2022 and it was stated that neither of the interested party’s replying affidavit was forwarded to court and that the court made a correct finding that the interested party had not filed his submissions and therefore cannot amount to face record. It was submitted that what constitutes and error apparent on the face record was clearly elaborated in the case of Muyodi v Industrial and Commercial Development Corporation and another (2006) 1 EA 243 and it was submitted that there is no error apparent on the face record to warrant this court reviewing its Judgment.

18. Reliance was also placed in the case ofDaniel Toroitich Arap Moi v Mwangi Stephen Muriithi &Another (2014) eKLR and the ex parte applicant submitted that submissions are not evidence and are incapable of forming the basis for fair hearing.

19. It was stated that the interested party has not presented any evidence to show or suggest that his replying affidavit was never considered by the court in arriving at its decision. It was further stated that the interested party has attacked the entire judgment of the court and in his submissions, he contends that judgment was reached by his court cannot be sustained. It was submitted that the remedy available to the interested party is to prefer an appeal and not a review as was held in the case of Pancras T. Swai v Kenya Breweries Limited, civil appeal No 275 of 2010.

20. The ex party applicant further submitted that the interested party has not made a case for review and prayed that the same be dismissed with costs.

Respondents’ Submissions 21. I have perused the filed and do confirm that the respondent’s herein failed to file their submissions.

Analysis and Determination 22. It is the interested party’s case that this court should review and set aside judgment delivered on January 21, 2022 on grounds that there is sufficient reason for review as there is discovery of new evidence and there is an error apparent on the face of the record. The interested party has stated that on July 2, 2021, he filed his replying affidavit in opposition of the ex parte applicant’s application dated June 29, 2021 and that on July 5, 2021 the registry sent to him an invoice of payments which was made the same day via mpesa.

23. The interested party has alleged that he filed his submissions via e-filing on September 21, 2021 and the court delivered judgment on January 21, 2022 and that the court did not consider his replying affidavit nor submissions as the judgment only relied on the evidence adduced by the ex parte applicant and ignored his evidence.

24. Section 80 of the Civil Procedure Act provides as follows:"Any person who considers aggrieved-a)By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred, orb)By a decree or order from which no appeal is allowed by this Act;may apply for 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.Order 45 rule 1(1) of the Civil Procedure Rules provides as follows:(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or 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”

25. This court therefore has to consider whether the interested party has met the threshold for grant of review orders. On whether there is discovery of new evidence, this court has found out that although the interested party herein filed his application on grounds that there is discovery of new evidence, there was no evidence produced by the interested party to enable this court to consider in order to set aside its judgment.

26. On whether there is error apparent on the face record, it is the interested party’s case that this court did not consider his replying affidavit in opposition to the ex parte applicant’s application dated June 29, 2021and I have looked at the replying affidavit that was filed by the interested party which elaborates that the time taken to file the appeal to the minister was 8 days and not years as stated in the judgment since this court found out that the 7 years was contrary to section 29 (1) of the Land Adjudication Act.

27. In as much as the minister cancelled the title to land parcel number 4754 Bondo/Nyangoma adjudication section which was in the name of Raphael Midhodho (deceased) yet the suit property was no longer under adjudication process, this court found out in its judgment that the minister actedultra vires. `

28. 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.”

29. in the case of Albert Yawa Katsenga v Kenya Revenue Authority, Nairobi ELRC No 713 of 2018, the court held that:"The rule provides circumstances under which this court can grant orders for review and this include circumstances as indicated, in the applicant’s position, review sought on the account of an error on record because the court failed to consider their submissions which had been filed, indeed, the time of writing this judgement, the respondent's submissions had not been filed. They were also not on record. That notwithstanding, this court considered the evidence of the respondents on record and also considered the law and facts in arriving at court’s determination. Failure to consider the submissions of the respondents does not in mv view prejudice the respondents at all since all facts and the law in this case was considered. There is therefore no valid reason for me to consider a review order as sought.”

30. Based on the above decision, although the interested party has stated that his submissions were not considered in the judgment delivered by this court, I have carefully looked at the emails being relied upon by the interested party and do confirm that there is no evidence to show that the interested party’s submissions were duly filed as there is no evidence of an invoice generated from the registry and the interested party has not proved that in as much as he forwarded the submissions for assessment on September 21, 2021,the same was assessed, an invoice issued together with a receipt to prove that he paid for the same.

31. On whether the interested party has demonstrated sufficient reason for grant of the orders of review, I am guided by the case of Sadar Mohamed v Charan Signh and another(1963) EA 557, where it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two, that is, error apparent on the face of the record and discovery of new and important matter.This court finds that the interested party has not given any other sufficient reason in order for this court review its judgment.

32. In the case ofNational Bank of Kenya Limited v Ndungu Njau [1997] eKLR, Nairobi CACA No 211 of 1996 the Court of Appeal stated thatThe matters in dispute had been fully canvassed before the learned judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.

33. Although the interested party sought for orders of stay of execution, this court is of the view that the interested party did not meet the conditions for grant of stay of execution orders.

34. This court is of the view that if it reached a wrong decision, any aggrieved party has a right to appeal and not review. Section 8 of the Law Reform Act which provide as follows:"8 (3) 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 therefore conferred by subsection (5) of this section.”“8 (5) Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefore to the Court of Appeal.”

35. In the case of Kuria Mbae v The Land Adjudication Officer – Chuka & another (supra), MiscAppl No 257 of 1983(unreported) a two judge bench heldinteralia:-"……There is no doubt or dispute that a party aggrieved by the decision of this court in granting or refusing an order of certiorari is entitled to appeal to the Court of Appeal. However according to section 8 (3) of the Act, this court’s order on such application is final and cannot be the subject of pleadings or prohibition. There is also no provision in the said Act or any other law making such prerogative order of this court subject to the usual pleadings available in proceedings under the Civil Procedure Rules. In our view therefore, it would appear that this court has no jurisdiction to stay, arrest, recall, review set aside or quash an order of certiorari once it has made it.We wish to observe that it is now firmly established by the Court of Appeal that where the proceedings are governed by a special Act of parliament, the provisions of such Act must be strictly construed and applied and that the provisions of the Civil Procedure Act and rules do not apply unless expressly provided by such an Act. As such, the provisions of the Civil Procedure Rules and Act cannot be implied merely because the special Act does not exclude them………..”

36. Based on the above analysis, this application is hereby dismissed with costs as the same lacks merit.

DATED AT KISUMU THIS 28TH DAY OF JULY 2022ANTONY OMBWAYOJUDGE