[2023] KEHC 25733 (KLR)

Sombe v Nzuki & another (Civil Appeal 22 of 2018) [2023] KEHC 25733 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25733 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 22 of 2018

DKN Magare, J

November 21, 2023

Between

Elisha Wasaba Sombe

Appellant

and

Victor Matheka Nzuki

1st Respondent

Fredrick Muthiani Mwangangi

2nd Respondent

Ruling

1. The Plaintiff sought to set aside the order dismissing this appeal for want of prosecution. He stated that they had sought for proceedings in 2018 and last follow up on 17/1/2019. They followed up on 28/3/2023. The last date was a date after I gave Notice to dismiss the appeal on 27/2/2023. When we came for hearing interpartes, Mr. Wafula was present.

2. I considered sentiments and dismissed the appeal, with costs of 35,0000/=. I make the order considering all circumstances of the case. The application dated 31/6/2023 [ who has 31st June]. I have noted a chronology of events that does not add up. Someone alleging that the file was in the Judge’s chambers. This is the most common lies used when staff don’t want to looK for the file.

3. In HA v LB [2022] eKLR, the court, G.v. Odunga, as he was then, stated as doth: -“11. Whereas under Order 45 rule 1, a person aggrieved by a decision whether an appeal is allowed or not but who is not appealing, is at liberty to apply for review of the decision, that provision, in my respectful view, is not a carte blanche for abuse of the process of the Court. In the case of Stephen Somek Takwenyi & Another v David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 Kimaru, J dealing with the issue of abuse of the process of the Court stated as follows:“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it”.

4. In Yani Haryanto v E. D. & F. Man. (Sugar) Limited Civil Appeal No. 122 of 1992, quoted in the case of HA v LB [2022] eKLR, the Court of Appeal was of the following view:“The facility of review under Order 44 of the Civil Procedure Rules(currently order 45) is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review. A notice of appeal apart from manifesting a desire to appeal, appears to have a two-fold purpose; one of the purposes is apparent from the rules that follow up to and including rule 79. The other purpose is to enable the High Court to entertain an application for stay of execution before the appeal is filed...What rule 4(1) of Order 41 of the Civil Procedure Rules prescribes for is an exception to the rule relating to the actual filing of the appeal which is rule 81(1) of the Court of Appeal Rules. The exception is the deeming of the appeal to be filed for the purposes of rule 4 of Order 41 only on the giving of the notice of appeal. Therefore despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review... An appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal”.

5. In the case of Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2022] eKLR, Justice mugo Kamau stated as doth:-“Discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath v State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608. had this to say:-“the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule”

6. In Tokesi Mambili and others v Simion Litsanga the Court held as follows:-“In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.

7. Section 80 0f the civil procedure act provides as follows: -“80. Review 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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”On the other hand, an application for review order 45 Rule 1of the civil procedure rules provide as follows: -“Application for review of decree or order(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.”

Respondent’s Submissions 8. The respondent submits that there was no order in April capable of being vacated. Further the matter was conducted interpartes, hence the court was functus officio. It wads their case that this appeal was dismissed on a day other than the day indicated. They rely on the case of Muthoni Nduati v Wanyoike Kamau & 5 Others [2004] eKLR, where Justice stated as doth:“In his statement of claim. Pleadings play a very pivotal role in litigation. As stated in Bullen & Leake[12th edition] at page 3 under the rubric Nature of Pleadings:“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective case and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purpose of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial”.My reading of the foregoing decision is that if a trial court deals with an issue which is not properly before it, that would be wrong.”

9. They rely on the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, where Asike-makhandia, Kiage & Odek, JJ.A stated as doth: -“The respondent’s application for review was therefore incompetent hence the court did not have jurisdiction to grant the orders sought under Section 80 of theCivil Procedure Act and Order 45 of the Civil Procedure Rules. This determination is sufficient to dispose off the appeal. However, for completeness sake, I will venture further.Section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure rules gives the court unfettered discretion to make such order as it thinks fit on sufficient reason being given for review of its decision. However as it has been constantly stated this discretion should be exercised judiciously and not capriciously. In National Bank of Kenya Limited v Ndungu Njau (1997) eKLR this Court held that:“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”.

10. The applicable law for grant of review is Section 80 of the Civil Procedure Act which provides inter alia:-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; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a 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.Whereas order 45 rule 1 of the Civil Procure Rules is in terms:-(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.

11. The applicant did not file submissions. They had sought that the order made on 13. 4.2023 be set aside. I made no order on the said date. The applicant had field a replying affidavit where the last action was 2018.

12. Nevertheless, I perused the court file and noted that the last action, in terms of letters was 4 years ago. The Decree has never been filed. Truly there was no action. On the file. I had to safe the appeal from the ignominy of its own laches.

13. In the case of Thathini Development Company Limited v Mombasa Water & Sewerage Company & another[2022] eKLR, Hon. Justice L.L. Naikuni, stated as doth: -“...the test applied by court in the application for dismissal of suits for want of prosecution is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite the delay. In other words if the delay is satisfied with the Plaintiff’s excuse for the delay and the parties are still keen and interested in pursuing their matter going forward in the fullness of time, justice can still be done to the parties before court, and hence the action would not be to dismiss it but direct that it be heard at the earliest time possible and available. “This court on the legal ration of Order 17 (2) (3) of the Civil Procedure Rules, 2010 relies on the decision of Investment Limited v G4s Security Services Limited (2015) eKLR where court held :-“This order is permissive and allows quite significant room for exercise of discretion to sustain the suit. And I think it is so especially when one fathoms the requirements of Article 159 of the Constitution of Kenya and the overriding objective when demands of courts to strive often, unless for very good cause, to serve substantive justice. This is well understood in the legal reality that dismissal of a suit without hearing it on merit is such draconian act comparable only to the proverbial “Sword of the Damocles”. But in reality should be checked against yet another equally important constitutional demand that case should be disposed of expeditiously, which is founded upon the old adage and now an express Constitutional Principle of Justice under Article 159 (2) of the Constitution of Kenya that justice delayed is justice denied. Here I am reminded that justice"

14. In the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR, the court stated as doth: -“In Telkom Kenya Ltd v John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Ltd (supra), the Court of Appeal held as follows on the functus officio doctrine-“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon--The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.....”

15. The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”In this matter, I exercised my discretion after hearing parties. The matter was fully heard and I made up my mind. However wrong or right I was, it is not my duty to place a seal of approval. I had done my work and retired. In latin, they call it functus officio. The order made on 6/7/2023, can only or could only be challenged on Appeal.

16. The Court proceeded inter partes. The court, aware of all facts came to a decision. That decision may lack wisdom. However, that is all only a senior bench can infuse wisdom.

17. Exercise of discretion is not a ground for review. It is a ground for appeal, if the discretion is capricious and injudicious. In the case of Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR the supreme court in reviewing its review jurisdiction, which basically is ‘an appeal within” the supreme court, excuse my tautology, stated as doth:“(30)We further add that the review window so envisaged is not meant to grant an applicant a second bite at the cherry. It is not an opportunity for an applicant to re-litigate his/her case. Sight should never be lost of the shore that in an application for review, like the one before the Court, at the core of the application is the Court’s exercise of discretion. It is the Court/Judge’s decision that is impugned and not the substantive application being re-argued. Hence an applicant is under a legal burden to lay a basis, to the satisfactory of this Court, that in exercise of its discretion, the limited Bench acted whimsically or misdirected itself in reaching the decision it made.(31)Consequently, drawing from the case law above, particularly Mbogo and Another v Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows:(i)A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court.(ii)Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;(iii)An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.(iv)In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.(v)During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.(vi)The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:(a)as a result a wrong decision was arrived at; or(b)it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.(32)Turning to the matter at hand, the Applicant before this Court has unfortunately failed to meet the above threshold. It has made no attempt at showing how the judges abused their discretion. We agree with the 1st Respondent that the application, while clothed and titled review, is a re-litigation of the application for extension of time. Where the Applicant impugns the Judges’ conduct, it emerges that it is a clear case of appeal rather than review. For instance, at paragraph 29 of the Submissions, it is submitted that: [t]he learned judges failed to consider the public interest in the interpretation of Article 181 of the Constitution.”This is a clear ground of appeal and not review.”

18. What the Applicant is seeking is a second bite on the cherry. At this rate, where parties come back for me to sit on Appeal from my own decision the Court of Appeal will be rendered redundant. Parties should gather courage and appeal decisions that they think were erroneous. Therefore, I do not find any merit in the application dated (wrongly dated 31/6/2023). The same is dismissed with costs of Kshs. 10,000/=.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Shisia for the AppellantJuku for the Respondent holding brief for Jengo.Court Assistant - Brian