[2022] KEELC 679 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO. 12 “B” OF 2021

FORMERLY HCC NO. 153 OF 2012

WILSON NJIRI GIKONYO……….…………………..PLAINITFF

VERSUS

RUTH MARY WANGUI…………...….………...1ST DEFENDANT

DANEVA CO. LTD………………..….…………2ND DEFENDANT

WILLIAM WANJOHI MUREITHI……………3RD DEFENDANT

R U L I N G

1. This suit was commenced by way of Originating Summons dated 3rd May 2012. The Originating Summons as per agreement of the parties was determined on the basis of submissions made on the originating summons by the parties. Judgment was delivered by the court on 15th February 2013. The court dismissed the Originating Summons with costs holding that the Originating Summons was fatally defective for failure to attach a certified abstract of title of the suit property.

2. The applicants, Mary Wanjiku Njiiri and David Gikonyo Njiiri on 7th October 2020 filed a Notice of intention to appear in person dated 18th September 2020. On 12th October 2020 the Applicants filed the Notice of Motion dated 18th September 2020 which is the subject of this ruling. The application is expressed to be brought under numerous provisions of the law which include the Civil Procedure Act; the Limitation of Actions Act; Civil Procedure Rules 2010; the Judicature Act; the Evidence Act; the Advocates Act; the Land Registration Act 2012 and the Constitution of Kenya 2010.

3. Without looking at the content of the application it would not be possible to ascertain the nature of the application. Going by the prayers sought in the application it is clear the application was one that sought review and/or setting aside of the court’s judgment delivered on 15th February 2013. By the application the applicants pray for the following orders:

1. That the urgency is that this application be heard ex-parte and service be dispensed with at first instance and that this honourable court be pleased to give directions for hearing of this application inter- parties at the earliest possible date.

2. That this honourable court be pleased to substitute the plaintiff Wilson Njiri Gikonyo who is deceased with or add as plaintiffs Mary Wanjiku Njiiri and David Gikonyo Njiiri on behalf of his estate.

3. That this honourable court be pleased to review its judgment herein dated 15th February, 2013 and reverse/vacate/set it aside.

4. That this honourable court be pleased to review its decree herein dated 12th March, 2013 and reverse/vacate/set it aside.

5. That his honourable trial court be pleased to reverse/vacate/set aside the defendants party to party billing of costs for taxation dated 11th June, 2013.

6. That the honourable court be pleased to reinstate the deceased plaintiff’s dismissed Originating Summons dated 3rd May 2012 and Amended Originating Summons dated 6th June, 2012 and set a date for their directions.

7. That this honourable court be pleased to overrule the defendants Notice of Preliminary Objection dated 17th May, 2012 and give directions for the hearing of the deceased plaintiff’s Notice of Motion/application for Orders dated 3rd May 2012 and the defendants grounds of opposition dated 17th May 2022.

8. That this honourable court be pleased to grant any other orders and reliefs it deems just and expedient.

9. That costs and interest of court rates thereon be provided for and condemned against the defendants at the higher scale.

4. The application was supported on the grounds that were enumerated running up to 110 and on the supporting affidavits by the 1st and 2nd applicants sworn on the 22nd September 2020. The grounds and the contents of the supporting affidavit are in the nature of evidence and/or arguments the applicants could present if the judgment was reviewed and/or set aside and the suit heard afresh.

5. The 1st applicant Mary Wanjiku Njiiri the widow of Wilson Njiri Gikonyo (deceased) was issued with a grant for letters of administration for his estate on 18th March 2015 while David Gikonyo Njiri the 2nd applicant was issued an Ad Litem grant on 12th April 2013 according to his supporting affidavit paragraph 3 for the purposes of pursuing this suit and filing other suits on behalf of the deceased estate.

6. Indeed, the 2nd applicant at paragraph 6 of his supporting affidavit deponed that he on 1st July 2014 filed ELC No.193 of 2014 at the Nakuru High Court.

7. The applicants argue that there was an error on the face of the record as the directions of the court given on 20th July 2012 were not complied with and that the plaintiff’s Notice of Motion dated 3rd May 2012 was not heard on 20th July 2012 as scheduled but rather the judge directed the parties to exchange written submissions on the Originating Summons within 30 days and it was on the said submissions that the judgment was premised meaning the plaintiff’s application remained unheard. The applicants contend this was an error on the face of the record which the court should correct under Section 100 of the Civil Procedure Act and/or should review under Order 45 of the Civil Procedure Rules. The applicant further contend the preliminary objection raised by the defendants was on procedural technicality and the court ought not to have relied on the technicality to dismiss the suit without affording the plaintiff the opportunity of being heard on the merits of the case. The applicants generally faulted the learned judge for arriving at the decision/judgment that she did arguing that the judge failed to follow due process when she omitted to adhere to the directions given in the matter and further failed to give due consideration to the evidence on record and the submissions filed by the plaintiff’s counsel on record.

8. The 3rd defendant acting on behalf of himself and the 2nd defendant where he is a director swore a replying affidavit dated 30th September 2021 filed in court on 5th October 2021 in opposition to the applicant’s application. He deponed that the application was a blatant abuse of the court process. He averred that judgment in the Originating Summons was delivered on 15th February 2013 and that the deceased, Wilson Njiri Gikonyo was represented by counsel. That the firm of Advocates M/s Mirugi Kariuki & Co. Advocates represented the deceased and applied for the 2nd applicant, David Gikonyo Njiiri to be issued Ad Litem grant to represent the deceased which was issued on 12th April, 2013 as per annexture “DGN-7” in the Applicant’s supporting affidavit. The 3rd defendant further deponed that the applicants were all the time aware of the suit from the time of the delivery of the judgment. The Respondents contend the applicants have not offered any explanation for the delay of over 7 years from the date the judgment was delivered to the time the present application for review was filed.

9. The Respondents further contended the applicants filed Nakuru HC ELC 193 of 2014 which involves the same subject matter as in the present suit and in the suit the applicants pleaded that the Originating Summons in the instant suit had been dismissed by the court in 15th February 2013 which indicated they had all along been aware of the judgment delivered herein. The Respondents aver that the applicants did not seek to review the judgment but rather opted to file fresh suit involving the same subject land and more or less seeking similar prayers as they sought in the instant suit. The respondents contend the title of the subject land of the Originating Summons has since been closed on subdivision and does not exist and hence the orders sought in the Originating Summons were not capable of being granted.

10. The Applicants in response to the 3rd defendant’s replying affidavit filed a supplementary affidavit on 8th November 2021 sworn by David Gikonyo Njiri on 1st November 2021. The supplementary affidavit reiterated the contents of the supporting affidavits filed by the applicants. The supplementary affidavit like the supporting affidavits made reference to wide ranging averments respecting the errors and/or omissions the learned judge made in reaching the decision that she did. The applicants contend the learned Judge instead of delivering a ruling on 8th February 2013 as scheduled delivered a judgment on 15th February 2013. This they argued was irregular and constituted an error on the face of the record and invited the court to exercise its review jurisdiction and set aside the judgment.

11. I observed at the beginning of this ruling that the applicants have cited a myriad of legal provisions to ground their application but in real sense, it is an application, firstly to have the applicants substituted as plaintiffs in place of Wilson Njiiri Gikonyo (now deceased) as personal legal representatives for his estate; and secondly, to have the judgment delivered on 15th February,2013 reviewed and/or set aside. The other orders sought in the application would be consequential to the court granting an order reviewing and/or setting aside the impugned judgment.

12. Under prayer (2) of the application, the applicants pray that they be substituted as plaintiffs in place of Wilson Njiiri Gikonyo (Deceased) on behalf of his estate. Order 24 of the Civil Procedure Rules provides for substitution of parties whether plaintiff or defendant within a period of one year from the date of death of the party. In the case of plaintiff the suit abates and in case of defendant the suit against such defendant abates if no application for substitution is made within the prescribed period of 12 months (see Rules 3 and 4 of Order 24 Civil Procedure Rules). The court may however for sufficient cause extend time within which an application for substitution of a party may be made.

13. Where it is a sole plaintiff who dies and no application is made within the requisite one year, his suit abates and unless an application to have the suit revived is made as provided under Order 24 Rule 7 (2) is made no substitution is possible since there is technically no suit after abatement on which the substitution can be made. Order 24 Rule 7 provides as follows:-

Effect of abatement or dismissal [Order 24, rule 7. ]

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.

14. In the context of the present application by the applicants I do not consider that the provisions of Order 24 which essentially relate to and concern suits that are pending and/or ongoing would be applicable. Following the delivery of the judgment on 15th February 2013 that dismissed the plaintiff’s case, there was no case by the plaintiff that remained pending as the court had determined the same. Order 24 Rule 7 (2) as relates to revival of the suit would therefore not apply. The law does not provide a statutory period within which an application for review of judgment can be made. The applicants have demonstrated that they hold grant of letters of administration to represent the deceased estate and in that regard for purposes of applying for a review of the judgment on behalf of the deceased, I see no bar and accordingly I substitute them in place of the deceased plaintiff for purpose of the present application.

15. Turning to the issue whether the applicants have satisfied the conditions upon which the court can review the judgment delivered on 15th February 2013, it is necessary to consider the law applicable to review. Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya makes provisions for review as follows: -

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 decree or order from which no appeal is hereby 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.

The above provision provides the applicable substantive law when a party seeks review. The procedure and the conditions a party applying for review is required to satisfy is provided under Order 45 rule 1(1) which I set out hereunder: -

45. 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 ace of the record or for any 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.

16. From the above provisions of the law, for an applicant to succeed in an application for review of a decree or order such applicant must satisfy the following conditions: -

(i) That there has been discovery of new and important matter or evidence that was not available at the time the decree was passed or order made; or

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

(iii) There is some sufficient reason to warrant review to be made; and

(iv) The application must be made without unreasonable delay.

17. An application seeking review is not an appeal against the decree or order and therefore a party seeking review must satisfy one of the conditions (i) - (iii) above and additionally must have brought the application without unreasonable delay. If an applicant in an application for review is in effect challenging the basis upon which the judge reached the decision that he/she did, and does not demonstrate to the satisfaction of the court that one of the conditions under Order 45 Rule 1 upon which review may be granted has been met, the court cannot grant and/or order a review. The court in a review application cannot consider the merits of the judgment as that would be within the province of a court exercising appellate jurisdiction. The supreme court in the case of Menginya Sahim Mugani-vs- Kenya Revenue Authority (2014) eKLRstated thus: -

“ it is a general principle of law that a court after passing judgment, becomes functus officio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by the law”

18. While 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, such discretion should be exercised judiciously and not capriciously. The court of Appeal in the case of National Bank of Kenya Ltd -vs- Ndungu Njau (1997) eKLR held thus:-

“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.

19. In the application before the court the applicants seek review of the judgment on a multiplicity of grounds as set out in the body of the application and in the supporting affidavits. The applicants cite discovery of new matters as well as mistakes and/or omissions. The applicants complain that the learned judge failed to consider the submissions filed by the plaintiffs advocate in the judgment and further argue that the judge on 11th December 2012 reserved the matter for ruling but instead a judgment was delivered by the judge on 15th February 2013 in the absence of the plaintiff. The applicants cite this as an error/mistake apparent on the face of the record.

20. I have perused the court record and note that the originating summons dated 3rd May 2012 was filed on 4th May 2012. That the defendants entered appearance and filed a replying affidavit on 17th May 2012 and on the 18th May 2012 the defendants filed a Notice of preliminary objection challenging the competency of the plaintiff’s originating summons. On 20th July 2012 counsel appeared before Wendoh, J and agreed to do submissions on the Originating Summons. The court on the date gave directions that the parties exchange submissions on the Originating Summons within 30 days and further directed the matter be mentioned on 5th October 2012 for further directions.

21. On 5th October 2012 counsel appeared before Wendoh, J and Mr Karanja counsel for the plaintiff sought time to file a reply to the submissions served upon them by the defendants. The court directed the mater to be further mentioned on 9th November 2012 when counsel appeared and the court directed that the submissions be highlighted on 11th December 2012.

22. On 11th December 2012 the matter was listed before Lady Justice Waithaka of the newly inaugurated Environment and Land Court (ELC) presumably because this was a Land matter and it was the ELC that had jurisdiction to deal with it. Both counsel for the parties appeared before Waithaka, J and affirmed that the matter was scheduled for highlighting of the filed submissions. Both counsel opted to entirely rely on their filed submissions and invited the court to give a date for ruling. The court fixed the matter for ruling on 8th February 2013. There is no indication that any proceedings took place on 8th February 2013 but there is on record a signed judgment stated to have been delivered on 15th February 2013 in the presence of the defendant’s counsel. The plaintiff as not represented.

23. The record further shows a draft decree was forwarded to the plaintiff’s advocate then on record the same day the judgment was delivered by the defendants advocate vide a letter dated 15th February 2013 copied to the court. The decree was approved signed and issued on 12th March 2013. The plaintiffs advocates filed a party and party bill of costs on 12th June 2013 which was duly served upon the plaintiff’s advocates as per the affidavit of service filed.

24. I have referred to the court record extensively to illustrate how the judgment in this matter came about. Under Order 37 of the Civil Procedure Rules, unless the court gives directions under Rule 19 that the originating summons be treated as a plaint and proceedings be continued as though the suit had been commenced by way of plaint, there is no requirement that oral evidence be adduced. Order 37 Rule 19 provides as follows:-

Powers of court upon hearing of summons [Order 37, rule 19. ]

(1) Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.

(2)Where the court makes an order under subrule (1), Order 11 shall apply.

(3)This rule applies notwithstanding that the cause could not have been begun by filing a plaint.

(4)Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an order made under subrule (1)

25. In the present matter the judge never gave any directions under Order 37 Rule 19 (1). The advocates agreed to have the Originating Summons disposed by way of written submissions and the court gave directions to that effect. The judge in my view properly prepared a judgment and not a ruling as she was preparing what amounted to a final determination of the originating summons based on the affidavit evidence, the objection taken and the submissions filed by the parties. The singular issue for determination by the court in the instant application is whether the applicants have satisfied any of the conditions under Order 45 Rule 1 that could justify a review of the judgment as sought by the applicants.

26. I have carefully perused the judgment delivered on 15th February 2013. I appreciate that an application for review is not synonymous with an appeal. I cannot sit on appeal against a decision of a judge who exercised concurrent jurisdiction with the jurisdiction I am under the law allowed to exercise. The Honorable Lady Justice Waithaka who rendered the impugned judgment had the same jurisdiction as I have and I cannot therefore sit on appeal over her decision. In the judgment she held that the failure by the plaintiff to annex a certified extract of the title of the subject property rendered the originating summons fatally defective. The judge thus upheld the preliminary objection on that ground and in her judgment held that it was unnecessary to consider the other issues raised in the preliminary objection and the originating summons.

27. The Court of Appeal in the case of National Bank of Kenya Ltd -vs- Ndungu Njau (1997) eKLR held that: -

“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”.

28. In the present matter the applicants are challenging the learned judge’s exposition of the law applicable in adverse possession claims, particularly, as relates to the application of Order 37 Rule 7(2) that requires that the summons be supported by an affidavit to which a certified extract of title to the land in question be annexed. It was the learned judge’s position that failure to comply with Order 37 Rule 7 (2) rendered the originating summons fatally defective. The fact that there may have been other judges who have held otherwise or another judge may have held differently cannot avail the applicants a ground that there was a mistake or error apparent on the face of the record. The judge made the determination after an exposition of the law and that was her understanding of the law. If she erred that could only be taken up on appeal and not by way of review.

29. In my considered opinion the applicants have not satisfied any ground upon which a review may be granted under Order 45 Rule 1 of the Civil Procedure Rules. There has been no demonstration of discovery of new and important matter or evidence that was unavailable at the time the judgment was made and neither has it been demonstrated that there was a mistake and/or error apparent on the face of the record to warrant a review of the judgment. There is equally no other sufficient cause demonstrated to enable the court to exercise its discretion to order review of the judgment.

30. Additionally, I may observe that the applicants having been fully aware of the judgment as far back as April 2013 when the 2nd applicant obtained the ad Litem grant to enable him pursue the suit following his father’s death there has been inordinate delay in bringing the present application which would have in my view disentitled the applicants to the order of review sought even if grounds to warrant review had been established. There have been changes affecting the suit property and the substratum of the suit may have ceased to exist. That may have informed the filing of Nakuru HC ELC No.193 of 2014 which is still pending before the court.

31. The upshot is that I find no basis upon which I can exercise my discretion to review the judgment dated 15th February 2013 as sought by the applicants. I find no merit in the applicants Notice of Motion dated 18th September 2020 and I order the same dismissed with costs to the defendant/respondent.

32. Orders accordingly.

Ruling dated signed and delivered virtually at Nakuru this 24th day of March 2022.

J M MUTUNGI

JUDGE