Introduction
1. The applicant filed the motion dated 7th May 2024 seeking to stay, review, rescind and or set aside the orders made on the 6th May 2024 allowing the decree holder’s application dated 19th January 2024.
2. It was the judgement debtor’s case that there was an error on the face of the record, further that the court granted substantive orders on a date fixed for mention and directions; that the said orders were granted even when the administrators to the estate of the deceased had not been substituted.
3. The judgement debtor further averred that this was an ELC case and that this court had no jurisdiction dealing with the matter further that the decree holder maliciously obtained the impugned orders by non-disclosure of material facts specifically that this was an ELC matter.
4. The judgement debtor further averred that the judgement sought to be enforced was over 12 years old and was barred by the Limitation of Actions Act.
5. In response, the decree holder deposed a replying affidavit dated 22nd May 2024 in which he stated that an error or mistake apparent on the face of the record is one that is self-evident and does not require elaborate arguments to be established and that the judgement debtor’s disposition entails asking the court to sit on appeal on its own decision and reverse it.
6. It was further deposed that the fact that the judgement debtor believes the court should have reached a different conclusion means that the raised are matters fit for an appeal rather than review as was held in the case of Njaanake v Wamwea [2024] eKLR.
7. It was averred that the orders granted on 6th May 2024 were granted to give effect to the decree issued in this suit on 11th November 2009 that awarded the decree holder vacant possession of the suit property and that there was nothing wrong with the court issuing substantive orders on a mention date in the presence of all the parties as was held in the Court of Appeal case of Harrison Otiende & 5 Others v Bandari Sacco Limited & 3 Others [2019] eKLR.
8. The decree holder further deposed that this court’s jurisdiction was properly invoked by virtue of notice issued by the Emeritus Chief Justice Willy Mutunga inter alia that all pending judgement and rulings relating to the environment and the use and occupation of and title to land and all part heard cases pending before the High Court continue and be heard in the same court as contained in the copy of Gazette Notice No. 16268 and further reiterated by the Supreme Court in the case of Law Society of Kenya v Attorney General & Another [2019] eKLR.
9. It was further deposed that the delay in executing orders giving effect to the decree of this court was occasioned by the reluctance of the judgement debtor and further by his demise and the reluctance of his survivors to succeed him in order to join the suit.
Analysis & Determination
10. I have considered the pleadings herein and the oral submissions made in court. The first issue for determination is the issue of jurisdiction raised by the judgement debtor. The judgement debtor alleged that this court had no jurisdiction to grant the orders of 6th May 2024 as the issues emanating therein fall within the purview of the Environment and Land Court. In response the decree holder asserted that this court’s jurisdiction was properly invoked by virtue of notice issued by the Emeritus Chief Justice Willy Mutinga interalia that all pending judgement and rulings relating to the environment and the use and occupation of and title to land and all part heard cases pending before the High Court continue and be heard in the same court as contained in the copy of Gazette Notice No. 16268.
11. I am in agreement with the decree holder that by virtue of the aforementioned Gazette Notice No. 16268, this court had jurisdiction to grant the orders of 6th May 2024.
12. Having held as such, it is significant to critically examine the provisions for review, setting aside and/or varying court orders. These are found mainly under the provisions of Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 (1) & (2) of the Civil Procedure Rules, 2010. A clear reading of these provisions indicates that Section 80 is on the power to do so while Order 45 sets out the rules on doing it.
Section 80 provides: - 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 Judgement to Court which passed the decree or made the Order and the Court may make such order thereto.
Order 45 (1). States as follows: - Any person considering 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, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the 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”.
13. Drawing from the above stated provisions, it is quite clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. To qualify for being granted the orders for review, varying and/or setting aside a Court order under the above provisions , the following ingredients, jurisdiction and scope are required to be fulfilled:-
a) There should be a person who considers himself aggrieved by a Decree or order;
b) The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;
c) A decree or order from which no appeal is allowed by this Act;
d) There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or
e) 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.
f) The review is by the Court which passed the decree or made the order without unreasonable delay.
14. The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.
15. Discussing the scope of the review, in the case of Nyamongo & Nyamongo v Kogo” (2001) EA 170 and what constitutes an error on the face of the record, the Court rendered itself as follows: -
“An error apparent on the face of the record cannot be defined or exhaustively, there being an element of definitiveness inherent in its very nature and it must be determined judicially on 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 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 is certainly no ground for review though it may be one for appeal….”
16. Additionally, in his authoritative write up, Sir. Dinashah Fardunji Mulla in “Code of Civil Procedure” 18th Edition (a writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that “...the expression “any other sufficient reason” ...means a reason sufficiently analogous to those specified in the rule.
Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out…. would amount to an abuse of the liberty given to the tribunal under the Act to review its Judgement.
17. Applying the above principles to the instant application, this Courts makes a holding being fully satisfied that there was no error apparent on the face of the record while delivering the ruling and order of 6th May 2024.
18. The issues raised by the judgement debtor are issues that would require a re – appraisal of the entire evidence or how the Judge applied or interpreted the law and this would amount to exercise of Appellate Jurisdiction.
19. In the circumstances I am inclined to dismiss the motion dated 7th May 2024 with no orders as to cost.
Delivered, signed and dated at Kisumu this 27th day of August 2024
1. The applicant filed the motion dated 7th May 2024 seeking to stay, review, rescind and or set aside the orders made on the 6th May 2024 allowing the decree holder’s application dated 19th January 2024.
2. It was the judgement debtor’s case that there was an error on the face of the record, further that the court granted substantive orders on a date fixed for mention and directions; that the said orders were granted even when the administrators to the estate of the deceased had not been substituted.
3. The judgement debtor further averred that this was an ELC case and that this court had no jurisdiction dealing with the matter further that the decree holder maliciously obtained the impugned orders by non-disclosure of material facts specifically that this was an ELC matter.
4. The judgement debtor further averred that the judgement sought to be enforced was over 12 years old and was barred by the Limitation of Actions Act.
5. In response, the decree holder deposed a replying affidavit dated 22nd May 2024 in which he stated that an error or mistake apparent on the face of the record is one that is self-evident and does not require elaborate arguments to be established and that the judgement debtor’s disposition entails asking the court to sit on appeal on its own decision and reverse it.
6. It was further deposed that the fact that the judgement debtor believes the court should have reached a different conclusion means that the raised are matters fit for an appeal rather than review as was held in the case of Njaanake v Wamwea [2024] eKLR.
7. It was averred that the orders granted on 6th May 2024 were granted to give effect to the decree issued in this suit on 11th November 2009 that awarded the decree holder vacant possession of the suit property and that there was nothing wrong with the court issuing substantive orders on a mention date in the presence of all the parties as was held in the Court of Appeal case of Harrison Otiende & 5 Others v Bandari Sacco Limited & 3 Others [2019] eKLR.
8. The decree holder further deposed that this court’s jurisdiction was properly invoked by virtue of notice issued by the Emeritus Chief Justice Willy Mutunga inter alia that all pending judgement and rulings relating to the environment and the use and occupation of and title to land and all part heard cases pending before the High Court continue and be heard in the same court as contained in the copy of Gazette Notice No. 16268 and further reiterated by the Supreme Court in the case of Law Society of Kenya v Attorney General & Another [2019] eKLR.
9. It was further deposed that the delay in executing orders giving effect to the decree of this court was occasioned by the reluctance of the judgement debtor and further by his demise and the reluctance of his survivors to succeed him in order to join the suit.
Analysis & Determination
10. I have considered the pleadings herein and the oral submissions made in court. The first issue for determination is the issue of jurisdiction raised by the judgement debtor. The judgement debtor alleged that this court had no jurisdiction to grant the orders of 6th May 2024 as the issues emanating therein fall within the purview of the Environment and Land Court. In response the decree holder asserted that this court’s jurisdiction was properly invoked by virtue of notice issued by the Emeritus Chief Justice Willy Mutinga interalia that all pending judgement and rulings relating to the environment and the use and occupation of and title to land and all part heard cases pending before the High Court continue and be heard in the same court as contained in the copy of Gazette Notice No. 16268.
11. I am in agreement with the decree holder that by virtue of the aforementioned Gazette Notice No. 16268, this court had jurisdiction to grant the orders of 6th May 2024.
12. Having held as such, it is significant to critically examine the provisions for review, setting aside and/or varying court orders. These are found mainly under the provisions of Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 (1) & (2) of the Civil Procedure Rules, 2010. A clear reading of these provisions indicates that Section 80 is on the power to do so while Order 45 sets out the rules on doing it.
Section 80 provides: - 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 Judgement to Court which passed the decree or made the Order and the Court may make such order thereto.
Order 45 (1). States as follows: - Any person considering 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, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the 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”.
13. Drawing from the above stated provisions, it is quite clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. To qualify for being granted the orders for review, varying and/or setting aside a Court order under the above provisions , the following ingredients, jurisdiction and scope are required to be fulfilled:-
a) There should be a person who considers himself aggrieved by a Decree or order;
b) The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;
c) A decree or order from which no appeal is allowed by this Act;
d) There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or
e) 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.
f) The review is by the Court which passed the decree or made the order without unreasonable delay.
14. The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.
15. Discussing the scope of the review, in the case of Nyamongo & Nyamongo v Kogo” (2001) EA 170 and what constitutes an error on the face of the record, the Court rendered itself as follows: -
“An error apparent on the face of the record cannot be defined or exhaustively, there being an element of definitiveness inherent in its very nature and it must be determined judicially on 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 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 is certainly no ground for review though it may be one for appeal….”
16. Additionally, in his authoritative write up, Sir. Dinashah Fardunji Mulla in “Code of Civil Procedure” 18th Edition (a writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that “...the expression “any other sufficient reason” ...means a reason sufficiently analogous to those specified in the rule.
Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out…. would amount to an abuse of the liberty given to the tribunal under the Act to review its Judgement.
17. Applying the above principles to the instant application, this Courts makes a holding being fully satisfied that there was no error apparent on the face of the record while delivering the ruling and order of 6th May 2024.
18. The issues raised by the judgement debtor are issues that would require a re – appraisal of the entire evidence or how the Judge applied or interpreted the law and this would amount to exercise of Appellate Jurisdiction.
19. In the circumstances I am inclined to dismiss the motion dated 7th May 2024 with no orders as to cost.
Delivered, signed and dated at Kisumu this 27th day of August 2024