[2021] KECPT 252 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 234 OF 2020

STEPHEN CHEGE NG’ANG’A...............................................................CLAIMANT

-VERSUS-

STIMA INVESTMENT CO-OPERATIVE SOCIETY LTD............RESPONDENT

RULING

The Claimant filed a Statement of Claim dated 28th July 2020 over failure by the Respondent to transfer parcels of land to the Claimant. The Claimant went ahead to and served the suit papers and Summons to Enter Appearance upon the Respondents on 6th August 2020. There is an Affidavit of Service on Record, dated the 6th August 2020 and deponed by one Stephen Musau. The Respondents did not enter appearance and an ex partejudgment in default of appearance was entered on 25th August 2020 against the Respondents, pursuant to a Request for Judgment filed by B.N. Mbuthia & Company Advocates.

On 24th August 2020, the Respondent entered appearance through the firm of H & K, well after the statutorily permitted timelines. They however filed an Application under Certificate of Urgency, seeking to set aside the ex parte judgment in default of appearance, and that the Respondent be granted leave to put in their Defence. This Tribunal set aside the judgment in default of appearance via a Ruling dated 28th January 2021, and issued directions to parties on how to dispose with the claim, and set aside the Judgment in default of Appearance.

Subsequently, the Claimant filed an Application dated 4th February 2021, seeking to Review the Ruling that set aside the judgment in default of appearance. In his Application, the Claimant contends that the Tribunal set aside a judgment that does not exist, and as such is an error apparent on the face of record.

ISSUES FOR DETERMINATION

Having carefully considered the documents and arguments by both parties in their Written Submissions, we have framed the following issues for determination:

(a) Whether the thresholds for Review of a Ruling have been met; and

(b) Whether the Tribunal can set aside its Ruling of 28th January 2021.

ANALYSIS OF ISSUES

We now proceed to dissect the issues as follows:

(a) Whether the thresholds for Review of a Ruling have been met

The Claimant has invited this Tribunal to issue Orders to Review a Ruling on account of Section 80 of the Civil Procedure Act, as read with Order 45 Rule 1 of the Civil Procedure Rules 2010, which provides as follows:

Section 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.”

Section 80 of the Civil Procedure Act is amplified by Order 45 Rule 1 of the Civil Procedure Rules thus:

Order 45: Application for review of decree or order

“ 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.”

The plain and clear reading of Section 80 of the Civil Procedure Act, as read with Order 45 Rule 1 of the Civil Procedure Rules 2010 outlines the parameters for issuance of Review Orders, to wit, no appeal is allowed, and if it is, then it is not preferred; and

(i)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

(ii)on account of some mistake or error apparent on the face of the record; or

(iii)Any other sufficient reason or ground.

The Claimant has by conduct chosen to not appeal the Ruling, and as such, the implication is, he has preferred the Review option. The Claimant has as well chosen the ground for review to be on account of some mistake or error apparent on the face of the record.

In the case of Nyamogo & Nyamogo -vs- Kogo [2001] EA 170, the court, while discussing what constitutes an error on the face of the record, rendered itself as follows:-

“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness 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.”

The Claimant has stated that the Ruling referred to a Judgment in Default dated 25th August 2020, while in fact the Judgment in Default was entered on 27th August 2020. This Tribunal finds that this is a factual position, as it is evident, that there is an error of dates, which can be manifest on the face of record.

However, before granting a Review Order, this Tribunal must analyse the impact of a review of its Ruling. Will it assist the Tribunal in settling the case, or it is yet another bottleneck whose effect is nothing but a waste of the Tribunal’s time? We are guided by the case of Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR, where the Court of Appeal stated that: -

''An Application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the Application or case afresh."

It is our considered view that granting an Order for Review will not aid in the just determination of the case, as the dates in contention are merely clerical and can be cured by operation of Section 99and100 of the Civil Procedure Act.

The Claimant contends that the Respondent has admitted to receiving money from the Claimant. It is our considered view that the Claimant has other avenues of moving this court, and that is not a solid ground as to why a Ruling should be reviewed under Section 80 of the Civil Procedure Act, as read with Order 45 Rule 1 of the Civil Procedure Rules 2010.

Reason wherefore, we find and hold that this ground of the Application fails.

In the interest of justice, we find that the Orders sought should be denied and the Application dated 4th February 2021 be disallowed, and the matter to proceed to hearing.

ORDERS

We therefore Order as follows:

(a)The Claimant’s Application dated 4th February 2021 be and is hereby dismissed with costs in the cause;

(b)The Tribunal, in exercise of its powers to amend a Judgment under Section 99 of the Civil Procedure Act,amends paragraph (a) of the Ruling of the Tribunal dated 28th January 2021 to read as follows:

“The default judgment entered on 27th August 2020 is hereby set aside with costs in the cause.”

(c)The matter to proceed to full trial: parties to file and exchange their witness statements and documents within 30 days hereof; and

(d)Mention for Directions on 9. 11. 2021.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member Signed 2. 9.2021

Mr. B. Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Mbuthia Advocate for Claimant/Respondent

Mutai Advocate holding brief for Kiplagat for Respondent

Hon. B. Kimemia Chairperson Signed 19. 8.2021