[2022] KEHC 11496 (KLR)

Republic v Principal Secretary, Ministry of Interior and Cordination of National Government & another; Kitika (Exparte) (Miscellaneous Civil Application 19 of 2016) [2022] KEHC 11496 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11496 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application 19 of 2016

JM Mativo, J

May 18, 2022

Between

Republic

Applicant

and

Principal Secretary, Ministry of Interior and Cordination of National Government

1st Respondent

Attorney General

2nd Respondent

and

Dominic Munguti Kitika

Exparte

Ruling

1. Vide an application dated December 20, 2021 expressed under the provisions of Order 45 rules 1, Order 51 rule 1 of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3A and 80 of the Civil Procedure Act, the applicant Mr Dominic Munguti Kitika prays that this court reviews the orders made on May 26, 2016 and July 11, 2017 citing an apparent mistake and error on the face of the record. He also prays for costs of this application.

2. His grievance as gleaned from the application and the supporting affidavit is that he was only paid the principal sum plus interests but he was not paid costs of the case because as at the time he appeared before the court, his bill of costs had not been taxed.

3. The application is opposed. The respondent filed grounds of opposition dated March 3, 2022 stating:- that the application is frivolous, scandalous, vexatious and an abuse of court process; that this court is functus officio; that by an application dated April 22, 2016, the applicant applied for mandamus to enforce the decree and upon being informed he needed to tax his bill first he opted to forfeit the costs and mandamus was issued on May 26, 2016 and the decree was fully settled; and, on July 11, 2017, this case was marked as settled.

4. At the hearing of the application, the applicant essentially rehashed the contents of his supporting affidavit dated December 20, 2021. His core ground is that he filed a bill of costs as per the lower court’s judgment but the defendant opposed it stating that he was paid costs yet he was only paid the principal amount. He states that he is entitled to costs.

5. The respondents’ counsel submitted that the applicant filed an application dated April 22, 2016 seeking to enforce the decree against the government, but he opposed the application on grounds that it was filed before taxation. He pointed out that the learned Judge Emukule J notified the applicant that he ought to tax his costs so as to obtain a certificate of costs before enforcement. The respondent’s counsel stated the applicant informed the court he will not pursue costs and the judge recorded that that the applicant to be paid without costs. He pointed out that on July 11, 2017 the applicant told the court that he had been paid and the court recorded that the matter had been settled. He submitted that the applicant has not demonstrated that there was an error in the proceedings nor have any new facts been discovered. He urged the court to dismiss the application with costs.

6. For starters, as the record shows, on May 10, 2016, the respondents’ counsel informed the court that there was no certificate of costs upon which he could recommend payment under the Government Proceedings Act. The court clearly recorded as follows:-“the applicant do file an application before the lower court for assessment of costs and obtain a certificate of costs, that is including the total decretal amount, interests and costs.”

7. On May 26, 2016, the applicant informed the court as follows: - “I just want to be paid principal sum and interests. I can forgo costs.” The respondents’ counsel informed the court- “may it go on record that the applicant will not pursue costs against the government. The sum now due would be Shs 1,267,200/= as of today.” The applicant was recorded stating: -“I agree that the sum due is Kshs 1,267,200/=..” The court proceeded to order as follows: -“The respondent to pay the applicant the sum of Shs 1,267,200/= which is inclusive of the principal sum and interests but without costs … The said payment be made within 90 days from today...”

8. On July 11, 2017 the applicant informed the court as follows: -“I have been paid my money by the respondent. I have no further claim against the respondent. This file may now be closed.”

9. The court made the following order: -“The claim herein is now fully settled. This file is now marked closed.”

10. It is the above two orders the applicant now seeks to review. Whereas the court has a power of review, the court's jurisdiction to review its own judgment, as is well known, is limited. It must be exercised within the framework of section 80 of the Civil Procedure Act as read with Order 45 rule 1 of the Civil Procedure Rules, 2010. Section 80 provides: -80. Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act,May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

11. Order 45 rule 1 of the Civil Procedure Rules, 2010 provides: -45 rule 1 (1) Any person considering himself aggrieved-a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”

12. A reading of the above provisions reveals section 80 gives the power of review while Order 45 sets out the rules. Importantly, the rules restrict the grounds for review by essentially laying down the jurisdiction and scope of review by limiting review to the following grounds: -a.Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.On account of some mistake or error apparent on the face of the record, orc.For any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.

13. The parameters for the court’s jurisdiction are prescribed in Order 45 rule 1 which permits an applicant to press for a review on any of the above grounds. Paragraph (a) deals with a situation attributable to the applicant, while paragraph (b) deals to an action attributed to the court which is manifestly incorrect or on which two conclusions are not possible. However, neither of them postulates a rehearing of the dispute.

14. A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.

15. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 rule 1. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. As was held in Nyamogo & Nyamogo v Kogo:-“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness 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.”

16. As the Indian Supreme Court stated it has to be kept in view that an error apparent on the face of record must be such an error, which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The rationale behind this reasoning is that there is a distinction between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review lies only for patent error where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

17. A review of a judgment is a serious step and it can only be resorted where a glaring omission or patent mistake or like grave error has crept in the judgment or order by judicial fallibility but not where the judge has misapplied, misinterpreted or misconstrued the law or facts. The power of review can be exercised for correction of a mistake but not to substitute a view. As the record shows, the applicant informed the court he was not pursuing costs. He was also recorded stating that he has been paid and that the matter is settled. There is nothing before me to suggest an error or mistake on the part of the court as contemplated by the above rule.

18. An application for review is entertained only on a ground mentioned in Order 45 Rule 1. A review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

19. Notably, the applicant has invoked sections 1A, 1B and 3A of the Civil Procedure Act, essentially invoking the inherent powers of this court. The courts’ power stems from the Constitution and the statutes that regulate them. However, the jurisdiction of each hierarchy of the courts is limited within the boundaries of the written law apart from the High Court which is sometimes said to have inherent jurisdiction to do things not specifically provided for. In addition to the powers enjoyed in terms of statute, the High Court has always had additional powers to regulate its own process in the interests of justice commonly described as an exercise of its inherent jurisdiction defined by Freedman C J M in Current Legal Problems’ as the: -“. . . the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them…”

20. Jerold Taitz, in his book, The inherent jurisdiction of the Supreme Court pithily describes the inherent jurisdiction of the high court as: -“. . .This latter jurisdiction should be seen as those (unwritten) powers, ancillary to its common law and statutory powers, without which the court would be unable to act in accordance with justice and good reason. The inherent powers of the court are quite separate and distinct from its common law and its statutory powers, eg in the exercise of its inherent jurisdiction the court may regulate its own procedure independently of the Rules of court.”

21. Even though the inherent jurisdiction of the high court has long been acknowledged and applied by courts, a court’s inherent power to regulate its own process is not unlimited. It does not extend to the assumption of jurisdiction which the court does not otherwise have. In National Union of Metal Workers of South Africa & others v Fry’s Metal (Pty) Ltd it was aptly stated: -“While it is true that this court’s inherent power to protect and regulate its own process is not unlimited – it does not, for instance, “extend to the assumption of jurisdiction not conferred upon it by statute. . .”

22. It must be mentioned at the outset that the inherent powers of the court are not an open license for the court's exercise of unlimited discretion. It is invoked to effect procedural fairness between the parties where a statute falls short of doing so or where there is a gap in the law. The inherent power claimed is not merely one derived from the need to make the court's order effective, and to control its own procedure, but also to hold the scales of justice where no specific law provides directly for a given situation. Section 80 and order 45 rule 1 provides in clear terms the court’s jurisdiction, scope and considerations for entertaining applications for review. The attempt to invoke this courts inherent jurisdiction on the face of such clear provisions of the law in the circumstances of this case is misguided. The jurisdiction and boundaries for review are clearly set and defined by the law. The orders sought to be reviewed are not only clear, but no error or mistake exists nor is there any basis to warrant this court to exercise its inherent jurisdiction.

23. Flowing from the above discussions and findings, it is my conclusion that the applicants’ application dated December 20, 2021 is unmerited. I therefore dismiss the said application. Each party shall bear its own costs.Right of appeal.

SIGNED, DATED AND DELIVERED AT MOMBASA THIS 18TH DAY OF MAY 2022. John M. MativoJudge