[2022] KEHC 18084 (KLR)

Shariff, Administrator of the Estate of Jim Choge (Deceased) & 2 others v Chief Land Registrar & 3 others (Judicial Review Application 570 of 2017) [2022] KEHC 18084 (KLR) (Judicial Review) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 18084 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application 570 of 2017

J Ngaah, J

October 13, 2022

Between

Noreen Shariff, Administrator of the Estate of Jim Choge (Deceased)

1st Applicant

Eva Cherogony, Administrator of the Estate of Jim Choge (Deceased)

2nd Applicant

Byron Kipngetich Gawon Choge Administrator of the Estate of Jim Choge (Deceased)

3rd Applicant

and

Chief Land Registrar

1st Respondent

Patrick Bucha, Secretary Department of Housing and Urban Development

2nd Respondent

Nakuru Land Registrar

3rd Respondent

Amusement Garden Limited

4th Respondent

(Ruling rendered by Mativo, J (as he then was), the application was dismissed. Miscellaneous Application 570 of 2017 )

Ruling

1. By an application dated 14 June 2019, the applicant sought for, among other orders, an order for committal for contempt of court against the first three respondents. For reasons given in a ruling rendered by Mativo, J (as he then was), the application was dismissed.

2. The instant application seeks review of the ruling dismissing the application of 14 June 2019. It is by way of a motion dated 2 December 2019 and it is made under articles, 48, 50 and 159 (2) (d) of the Constitution, sections 1A, 1B, 3, 3A, 63€ and 80 of the Civil Procedure Act, cap. 21 and Order 45 of the Civil Procedure Rules.

3. The main prayers have been framed as follows:2. That the ruling issued by this Honourable Court on the 20th day of November, 2019 be reviewed, vacated and/or set aside.3. A declaration that the 1st, 2nd and 3rd respondents are in contempt of this Honourable Court orders and thus be declared unfit to hold any public office.”

4. The application is supported by the supporting affidavit of Noreen Shariff Choge sworn on 2 December 2019.

5. The application has been opposed by the respondents who have filed grounds of objection in which they have contended that the application is contrary to Order 45 of the Civil Procedure Rules since there is no discovery of new and important matter of evidence and neither is there an error apparent on the face of record. The application is, in any event, an appeal disguised as an application for review.

6. As much as the applicant has invoked Order 45 of the Civil Procedure Rules, it is not apparent from the application which of the grounds prescribed in that rule the application is based upon. Order 45(1) reads as follows: 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; 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.

7. It is clear from this rule that one may apply for review on three grounds; first, upon discovery of a new important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not possibly be produced by the applicant as at the time the order or decree by which he is aggrieved was made; second, if there was a mistake or error on the face of record and third, if there is any other sufficient reason.

8. The applicants have not specified in their application whether they rely on all or on any of these grounds. This omission is sufficient to have the application dismissed because it is not up to the court to speculate the grounds upon which the application for review is brought. That burden is always on the applicant for review.

9. Be that as it may, whatever ground the applicants may have had in mind, the affidavit sworn in support of the application suggests that they are challenging the learned judge’s appreciation of the evidence and the law. In a nutshell, they are saying that the learned judge misdirected himself on the facts and misapprehended the law. A few paragraphs from the affidavit suggest this to be the case. Sample these:2. That at paragraph 67 of the ruling, the court stated that the EACC had filed Miscellaneous Application No. 102 of 2018, Ethics and Anti-Corruption Commission versus Noreen Shariff Choge, Eva Cherogony, Byron Kipngetichh Gawon Choge and obtained preservation orders on the parcel of land and that the suit is still pending. That this position is not correct because:a.The preservation orders were only for a period of six (6) months and had since lapsed in 2018. b.The EACC withdrew the Nakuru Misc. Application 102 of 2018 and filed other suits byt way of a plaint against the administrators and the said suits by way of a plaint against the administrators and the said suits and as such the Misc Application No 102 of 2018 is no longer pending.c.That the Nakuru Misc. Application No 102 of 2018 only preserved parcels of land known as Nakuru Municipality Block 5/144, Nakuru Municipality Block 5/147, Nakuru Municipality Block 5/149 Nakuru Municipality Block 5/150, Nakuru Municipality Block5/221 and never preserved LR. Nos 12408 & 12862; LR Nos 32126 & 36738 situated in Langata Nairobi yet the respondents have not complied with the court orders in respect of the said Nairobi properties.d.That the court thus relied on a suit that was closed to dismiss the applicant’s contempt of court application as lacking on merit.3. That the ruling said nothing as regards LR. Nos 12408 & 12862 I.R Nos. 32126 & 36738 situated in Langata Nairobi that the respondents had deliberately failed to obey the court orders on.6. That in paragraph 69 of the ruling, the court states that the applicant’s counsel had indicated that the applicants herein are not parties to the Nakuru Miscellaneous Application No. 102 of 2018 yet they are parties. Paragraph 13 of the applicants (sic) further affidavits had indicated that the respondents in the contempt application are the ones who are not parties and not the applicants as the court has recorded.30. (sic)that at paragraph 70 where the court states its reason for dismissing the appeal, (sic) it is stated that pursuant to the preservation orders, restrictions were registered as against the parcels and as such it is not possible to deal with the files. Yet the applicant in paragraph 10, 11 and 12 of the further affidavit of Noreen Shariff Choge dated 18 June 2018 notified the court that the respondents instead of obeying, reviewing or appealing against the court orders they instead (sic) reported to EACC whereupon it culminated in the filing of suits in Nakuru.9. That on paragraph 72 of the ruling, the court has opined that the applicants (sic) title is under challenge from the government as per the averments in the affidavit by Mr. Bucha. The effect of this is that:a.The court ignored the averments by the applicants to the effect that by the time the government circular was issued in 2007/2008, the deceased had already bought the said parcels and obtained a transfer and as such, the circular could not possibly affect his parcels. Further, the circulars doesn’t (sic) lock out validation of the said properties given the fact that the deceased had a chance and he died at the time the validation process was ongoing.b.That the law does not apply retrospectively and as such, the circular could only apply to parcels that had not been sold as at the time it was issued and not to parcels already sold.c.That the issue of the circular had been raised before justices and the same were dismissed by the said judges as having been overtaken by events as the deceased had acquired the property as at the time they were issued.d.That the deceased (sic) parcels have never been challenged or nullified by the government.10. That the applicants extracted the said orders of Honourable Justice W. Musyoka aforesaid and served the same on the Chief Land Registrar, Secretary of Housing Ministry of Lands and Urban Development and Nakuru Lands Registrar over five times and they have never acted upon them and as such, that’s a deliberate disobedience of court orders.18. That the course of justice in these proceedings has been subverted or at the very least been impeded or prejudiced by the conduct of the respondents and the impugned ruling which can only embolden them not to comply with the court orders.”

10. I have had to reproduce these paragraphs to demonstrate that, even to a casual observer, the applicants are not mincing their words in faulting the learned judge’s ruling on the facts and the law.

11. The effect of the applicant’s depositions is that the learned judge neither appreciated the evidence nor the law properly and hence arrived at the wrong decision.

12. Even if I was to assume that the applicants are right, neither of these reasons can be grounds for review. If the applicants are of the firm view that the court misapprehended the law or misdirected itself on facts, or that its decision was patently wrong, a proper recourse would have been to appeal against that decision.

13. In Abasi Balinda versus Fredrick Kangwamu &another (1963) E.A 558 a court was asked to review its order on costs on the ground that the court was alleged to have taken an erroneous view of the evidence and of the law relating to the question of whether a returning officer was a necessary party to an election petition. The court (Bennet, J.) appreciated that section 83 of the Uganda Civil Procedure Ordinance(equivalent to section 80 of our Civil Procedure Act) conferred upon the court jurisdiction to review its own decisions in certain circumstances and order 42 (which is equivalent to order 45 of our Civil Procedure Rules) prescribed the conditions subject to which and the manner in which the jurisdiction should be exercised. In interpreting that jurisdiction and in the process, dismissing the applicant’s application, the court cited with approval a passage fromCommentaries on the Code of Civil Procedure by Chitaley & Rao (4th Edition), Vol. 3 page 3227, where the learned authors explained the distinction between a review and an appeal and had this to say;“a point which may be a good ground of appeal may not be a ground for an application for review. Thus, an erroneous view of evidence or law is no ground for review though it may be a good ground for an appeal”

14. Again, our own Court of Appeal explained this much better in National Bank of Kenya Ltd v Njau [1995-1998] 2EA 249 (CAK); at page 253 of the judgment, the court said: -“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of thecourt. 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 of 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 the law cannot be a ground for review.” (Underlining mine).

15. I need not say anything more on this except to state that the applicants’ application is, at the very least, incompetent, misconceived and an abuse of the due process of this honourable court. It is hereby dismissed with costs. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 13 OCTOBER 2022NGAAH JAIRUSJUDGE