Background and Introduction
1. For determination is the application dated 25th September 2024 brought under Order 45 Rules 1 &2 and Order 51 Rule 1 of the Civil Procedure Rules as well as Sections 1A, 1B and 3A of the Civil Procedure Act.
2. The application seeks a review of the ruling and order of this court dated 21st March 2024 which dismissed the applicant’s preliminary objection dated 14th June 2023. It prays that the preliminary objection be allowed and a declaration be made that the appeal is incurably defective. The application is supported by the grounds on the face of it as well as the supporting affidavit sworn by BULENT GULBAHAR.
3. The applicant contends that there exists an error apparent on the face of the record in the ruling and order delivered by Lady Justice A. Ong’injo on 21st March 2024, which warrants review. Specifically, the court dismissed the applicant’s preliminary objection on the basis that the appellant had, on 20th January 2023, made an oral application for leave to appeal out of time, and that Hon. Justice Mabeya had granted such leave on the same day.
4. The applicant avers that this finding is factually incorrect and constitutes a manifest error on the face of the record, as no such leave was granted on the date in question. It is asserted that the court either overlooked or misapprehended the record of proceedings. This error has, according to the applicant, been confirmed upon perusal of the court file and review of the video recording of the proceedings held on 20th January 2023. The applicant maintains that it is in the interest of justice that the court corrects the record to reflect the true position. Absent such correction, the applicant submits that he stands to suffer grave prejudice and a miscarriage of justice.
5. The respondent filed a replying affidavit sworn by EBUBEKIR SAHIN on 8th October 2024, opposing the applicant’s application. It is the respondent’s position that the appeal was filed within the statutory period prescribed under Section 79G of the Civil Procedure Act, having been lodged on 6th July 2022, following the lower court’s ruling delivered on 7th June 2022.
6. The respondent further avers that during the proceedings held on 20th January 2023, his counsel made an oral application for leave to file the appeal out of time, which was duly granted by Hon. Justice Mabeya, who allowed 60 days within which to file the record of appeal.
7. The appellant maintains that the respondent’s assertion that no such leave was granted is inaccurate and misleading, as the court’s record and attendance sheet confirm the order. He asserts that there is no error apparent on the face of the ruling sought to be reviewed and that the application amounts to an abuse of the court process intended to delay the disposal of the appeal.
8. In a rebuttal the respondent filed a supplementary affidavit dated 17th December 2024, sworn by BULENT GULBAHAR. He avers that the respondent’s replying affidavit merely re-argues the timeliness of the Memorandum of Appeal, an issue already determined by the court in paragraph 10 of the impugned ruling. The applicant contends that the real issue is the court’s erroneous finding at paragraphs 11 and 12 of the ruling that an oral application for leave to appeal out of time was made and granted by Hon. Justice Mabeya on 20th January 2023.
9. He states that neither the respondent’s earlier submissions nor the certified proceedings of 20th January 2023 mention or support the existence of such an oral application or grant of leave. The applicant now relies on newly obtained certified proceedings and a video recording of the session, which he asserts conclusively prove that no such leave was sought or granted. He maintains that this amounts to a clear and material error on the face of the record warranting review of the ruling, particularly paragraphs 11 and 12, and that it is in the interest of justice for the record to accurately reflect the proceedings.
Analysis and Determination
10. I have carefully considered the application, response, the submissions, evidence, and the authorities cited. The core issue for determination is whether the applicants have met the legal threshold for review of the orders issued on 21st March 2024. The legal framework governing applications for review is set out under Order 45 Rule 1 of the Civil Procedure Rules, 2010 which provides that:
“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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”
11. The application for review before this Court is based on the ground that there was an error apparent on the face of the record. In Muyodi V Industrial & Commercial Development Corporation & Another, [2006] 1 EA 243, the Court of Appeal provided authoritative guidance on what constitutes such an error, stating:
“… In Nyamogo & Nyamogo v Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of 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 long drawn process of reasoning or 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 or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”
12. It follows that for an application for review to succeed on the ground that there is an error apparent on the face of the record, the applicant must demonstrate the existence of a clear and obvious mistake or omission that is self-evident from the record or judgment itself, without the need for elaborate argument or in-depth legal analysis. The error must be patent and manifest, such that it strikes one immediately upon a plain reading of the record. It is not sufficient that the decision may appear to be incorrect or that the applicant is dissatisfied with the outcome; rather, the error must be one that is so obvious that there can be no two opinions about it, and which goes to the root of the decision.
13. I have perused the court record of 20th January 2023 and considered the audio recording availed to the Court by the applicant. In the recording the Court (Mabeya, J), is heard making the final orders as follows:
“In the end, the application is found to be merited and prayer (b) is allowed as prayed. The Record of Appeal be filed and served within 60 days from the date hereof. The costs shall abide with the outcome of the appeal.”
14. The recording corroborates the handwritten court proceedings, which confirm that thereafter counsel for the respondent, Ms. Ochieng, did indeed make an oral application for leave to file an appeal. In response, Mr. Atonga, appearing for the applicant, indicated that he had no instructions at the time and left the matter to the discretion of the Court. The Court then proceeded to pronounce: “Leave to appeal is granted”.
15. The record confirms thereafter the orders that “Mention before Dr. Githiru to confirm compliance”.
16. Either way, whether the issue pertains to the application for leave to file the appeal out of time, which was granted with sixty (60) days allowed for filing the Record of Appeal, or to the application for leave to appeal the ruling of the Court, which was likewise granted, the answers are found in both the court record and the audio recording provided.
17. Both sources confirm, unequivocally, that the Court granted the prayers sought. There is therefore no ambiguity or inconsistency in the record, and the assertion by the applicant that there exists an error apparent on the face of the record is without basis.
18. This finding is consistent with the reasoning adopted in the impugned ruling. It is therefore clear that the alleged error is neither patent nor self-evident, and consequently does not meet the legal threshold for review as stipulated under Order 45 Rule 1 of the Civil Procedure Rules.
Disposition
19. The application dated 25th September 2024 is unmerited and the same is dismissed with costs.
1. For determination is the application dated 25th September 2024 brought under Order 45 Rules 1 &2 and Order 51 Rule 1 of the Civil Procedure Rules as well as Sections 1A, 1B and 3A of the Civil Procedure Act.
2. The application seeks a review of the ruling and order of this court dated 21st March 2024 which dismissed the applicant’s preliminary objection dated 14th June 2023. It prays that the preliminary objection be allowed and a declaration be made that the appeal is incurably defective. The application is supported by the grounds on the face of it as well as the supporting affidavit sworn by BULENT GULBAHAR.
3. The applicant contends that there exists an error apparent on the face of the record in the ruling and order delivered by Lady Justice A. Ong’injo on 21st March 2024, which warrants review. Specifically, the court dismissed the applicant’s preliminary objection on the basis that the appellant had, on 20th January 2023, made an oral application for leave to appeal out of time, and that Hon. Justice Mabeya had granted such leave on the same day.
4. The applicant avers that this finding is factually incorrect and constitutes a manifest error on the face of the record, as no such leave was granted on the date in question. It is asserted that the court either overlooked or misapprehended the record of proceedings. This error has, according to the applicant, been confirmed upon perusal of the court file and review of the video recording of the proceedings held on 20th January 2023. The applicant maintains that it is in the interest of justice that the court corrects the record to reflect the true position. Absent such correction, the applicant submits that he stands to suffer grave prejudice and a miscarriage of justice.
5. The respondent filed a replying affidavit sworn by EBUBEKIR SAHIN on 8th October 2024, opposing the applicant’s application. It is the respondent’s position that the appeal was filed within the statutory period prescribed under Section 79G of the Civil Procedure Act, having been lodged on 6th July 2022, following the lower court’s ruling delivered on 7th June 2022.
6. The respondent further avers that during the proceedings held on 20th January 2023, his counsel made an oral application for leave to file the appeal out of time, which was duly granted by Hon. Justice Mabeya, who allowed 60 days within which to file the record of appeal.
7. The appellant maintains that the respondent’s assertion that no such leave was granted is inaccurate and misleading, as the court’s record and attendance sheet confirm the order. He asserts that there is no error apparent on the face of the ruling sought to be reviewed and that the application amounts to an abuse of the court process intended to delay the disposal of the appeal.
8. In a rebuttal the respondent filed a supplementary affidavit dated 17th December 2024, sworn by BULENT GULBAHAR. He avers that the respondent’s replying affidavit merely re-argues the timeliness of the Memorandum of Appeal, an issue already determined by the court in paragraph 10 of the impugned ruling. The applicant contends that the real issue is the court’s erroneous finding at paragraphs 11 and 12 of the ruling that an oral application for leave to appeal out of time was made and granted by Hon. Justice Mabeya on 20th January 2023.
9. He states that neither the respondent’s earlier submissions nor the certified proceedings of 20th January 2023 mention or support the existence of such an oral application or grant of leave. The applicant now relies on newly obtained certified proceedings and a video recording of the session, which he asserts conclusively prove that no such leave was sought or granted. He maintains that this amounts to a clear and material error on the face of the record warranting review of the ruling, particularly paragraphs 11 and 12, and that it is in the interest of justice for the record to accurately reflect the proceedings.
Analysis and Determination
10. I have carefully considered the application, response, the submissions, evidence, and the authorities cited. The core issue for determination is whether the applicants have met the legal threshold for review of the orders issued on 21st March 2024. The legal framework governing applications for review is set out under Order 45 Rule 1 of the Civil Procedure Rules, 2010 which provides that:
“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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”
11. The application for review before this Court is based on the ground that there was an error apparent on the face of the record. In Muyodi V Industrial & Commercial Development Corporation & Another, [2006] 1 EA 243, the Court of Appeal provided authoritative guidance on what constitutes such an error, stating:
“… In Nyamogo & Nyamogo v Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of 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 long drawn process of reasoning or 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 or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”
12. It follows that for an application for review to succeed on the ground that there is an error apparent on the face of the record, the applicant must demonstrate the existence of a clear and obvious mistake or omission that is self-evident from the record or judgment itself, without the need for elaborate argument or in-depth legal analysis. The error must be patent and manifest, such that it strikes one immediately upon a plain reading of the record. It is not sufficient that the decision may appear to be incorrect or that the applicant is dissatisfied with the outcome; rather, the error must be one that is so obvious that there can be no two opinions about it, and which goes to the root of the decision.
13. I have perused the court record of 20th January 2023 and considered the audio recording availed to the Court by the applicant. In the recording the Court (Mabeya, J), is heard making the final orders as follows:
“In the end, the application is found to be merited and prayer (b) is allowed as prayed. The Record of Appeal be filed and served within 60 days from the date hereof. The costs shall abide with the outcome of the appeal.”
14. The recording corroborates the handwritten court proceedings, which confirm that thereafter counsel for the respondent, Ms. Ochieng, did indeed make an oral application for leave to file an appeal. In response, Mr. Atonga, appearing for the applicant, indicated that he had no instructions at the time and left the matter to the discretion of the Court. The Court then proceeded to pronounce: “Leave to appeal is granted”.
15. The record confirms thereafter the orders that “Mention before Dr. Githiru to confirm compliance”.
16. Either way, whether the issue pertains to the application for leave to file the appeal out of time, which was granted with sixty (60) days allowed for filing the Record of Appeal, or to the application for leave to appeal the ruling of the Court, which was likewise granted, the answers are found in both the court record and the audio recording provided.
17. Both sources confirm, unequivocally, that the Court granted the prayers sought. There is therefore no ambiguity or inconsistency in the record, and the assertion by the applicant that there exists an error apparent on the face of the record is without basis.
18. This finding is consistent with the reasoning adopted in the impugned ruling. It is therefore clear that the alleged error is neither patent nor self-evident, and consequently does not meet the legal threshold for review as stipulated under Order 45 Rule 1 of the Civil Procedure Rules.
Disposition
19. The application dated 25th September 2024 is unmerited and the same is dismissed with costs.