This ruling is in respect of the Notice of Motion application dated 26th July 2024 expressed to be brought pursuant to provisions of sections 13 (5) (a) and 19 (2) of the Environment and Land Court Act, section 83 of the Law of Succession Act, sections 3A, 80 and 99 of the Civil Procedure Act Cap 21 Laws of Kenya, Order 21 Rule 5, Order 45 Rules 1 & 2, Order 51 Rule 1 of the Civil Procedure Rules 2010 and Article 159 (2) (d) of the Constitution of Kenya, 2010.
The application seeks for an order that the court be pleased to review and vary its judgement delivered on 9th March 2023 as relates to the issue of limitation of actions and conferring of rights to the appellant over land parcel No. NYANG’ORI/BANJA/628 outside KAKAMEGA HC SUCC Cause No. 731/2007 (In the estate of Esther Tam-Binayo –deceased)
The application also seeks for an order that costs be provided for.
The grounds upon which the application was brought are that the judgement delivered on 9/3/2023 has an error on the face of it resulting from the honourable court overlooking a material fact regarding the nature of the Respondent’s and the appellant’s claim over land No. NYANGORI/BANJA/628 as filed in the lower court. That while the judgement states that the Respondent’s suit in the lower court was time-barred and that the appellant had been in occupation of the suit land for a period exceeding 30 years, the pleadings filed at the lower court and Appeal, the evidence led and the issues as articulated by parties were all centred on the nature of the preservation of the suit land which formed part of the estate of Esther Tam Binayo- deceased and which was the subject of Kakamega HC Succ No. 731 of 2007.
That the judgement fails to answer substantial issues placed before the honourable court and consequently leaves the parties in limbo over the nature of Esther Tam Binayo- deceased and the appellant’s rights to the suit land registered in the deceased’s name.
That the Respondent who instituted the suit in the lower court as an Administrator to the estate of Esther Tam Binayo- deceased is aggrieved with the judgement which the appellant, though a trespasser, understands as having conferred to her ownership right to the suit land. That the evidence on the issue justifying occupation exists, was placed on record and extensively submitted on, should have caused the court to reach a proper conclusion. That the impugned judgement sanctions a continued illegality by the appellant of trespassing onto the land of the deceased.
That the Judgement if allowed to stand will result in never ending legal tussles between and amongst the family members of the appellant and the Respondent. That review on the other hand will enable a determination of issues as articulate with finality. That it is only fair and just that the judgment be reviewed for the honourable to come to a fair, just and conclusive decision.
The application was supported by the averments in the Supporting Affidavit of Dr. Francis Binayo sworn on 26th July 2024.
The application was opposed vide the averments in the Replying Affidavit of Rose Kisibwa sworn on 20th August 2024. The Respondent’s case is that the applicant had filed a Notice of Appeal dated 21/3/2024 and a Notice of Motion dated 24/4/2024 both of which were never pursued. That the decree has been extracted and that the applicant is on a mission to distract and delay justice. That the application has been brought with unreasonable delay. That the applicant has not mentioned the material facts that she claimed the court overlooked. That the applicant is inviting the court to re-open the matter. That the application does not meet the threshold of an application for review.
The application was argued by way of written submissions. Counsel for the applicant filed written submissions dated 11th October 2024 on behalf of the applicant. Relying on the provisions of section 80 of the Civil Procedure Act, Orders 45 Rule (1) of the Civil Procedure Rules and the case of Muyodi -vs- Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, Counsel submitted that an error apparent on the face of the record must be one that is obvious to the eye and one which when looked at does not yield two results.
That in the present case the main issue is preservation of the estate of Esther Tam Binayo deceased against the Respondent’s trespass and occupation of the suit land. Counsel referred the court to the case of James N. Nderi t/a Nderi & Kingati Advocate -vs-Wandeto (2023) KELA 1058 (KLR) (22 September 2023) (judgment) where the court of Appeal held that parties are bound by their own pleadings and that the court itself can only determine issues that have been raised in the pleadings and which the parties have no agreement on, and the case of Galaxy Paints C. Ltd -vs- Falcon Guards Ltd (2000) EA 885 and Gaudy -vs- Caspar (1956) EACA 139 to support the submission that parties are bound by their pleadings. Counsel submitted that by focusing solely on the issue of limitation of actions, the judgment effectively failed to mention and answer substantive issues placed before the court and consequently left the parties in limbo over the nature of the Estate of Esther Tam Binayo and the Respondent’s right on land parcel number NYANG’ORI/BANJA/628 registered in the name of the deceased. That this amounts to an error on the face of the judgment.
That the judgement if left as it is, has the consequence of conferring to a trespasser and Stanger occupation rights to property belonging to the estate of the deceased outside an ongoing succession cause No, Kakamega H.C Succ NO. 731 of 2007. Counsel further relied on the authority in National Bank of Kenya Limitation -vs- Ndungu Njam (1997) eKLR where the Court of Appeal held that: -
“a review may be granted wherever the court considered 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.”
Counsel urged the court to allow the application with costs.
Written submissions dated 12th November 2024 were filed on behalf of the Respondent. The submissions were focused on the prayer for stay of execution which was prayer No. 2 on the Notice of Motion and which only sought for an interim order of stay of execution pending the hearing and determination of the application. Counsel prayed that the application be dismissed with costs to the Respondent.
The law governing review of court judgments, orders and decrees as correctly submitted by Counsel for the applicant is contained in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010.
The relief of review of a court judgement lies only where an appeal is allowed from the subject judgement but from which no appeal has been preferred or where no appeal is allowed. Section 80 provides; -
“Any person who considers himself aggrieved; -
- By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; - or
- By a decree or order from which no appeal is allowed by this Act may apply for a review of the judgment to the court which passed the decree or made the order and the court may make such order thereon as it thinks fit”
In the present case the Respondent deposed in the Replying affidavit that that soon after the judgment was delivered, the applicant lodged an appeal to the Court of Appeal against the judgement by a Notice of Appeal dated 21st March 2023. She annexed to her Replying Affidavit a copy of Notice of Appeal duly lodged with the Deputy Registrar of the Court on 28th March 2023. The applicant did not deny that he lodged the Notice of Appeal or adduce evidence that that the appeal commenced by the Notice of Appeal dated 21st March 2023 has since been terminated one way or the other.
Under section 80 of the Civil Procedure Act and Order 45 Civil Procedure Rules pursuant to which the application is brought the applicant cannot pursue both the appeal and the application for review concurrently as was also held in the case of the Chairman Board of Governors Highway Secondary School vs William Mmosi Moi Civil Appeal No. 277 of 2005.
From the provisions of section 80 of the Civil Procedure Act and Order 45 Civil Procedure Rules, the grounds upon which an application for review of a judgement, order or decree can be made are:
a) discovery of a new and important matter or evidence which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or order made
b) on account of some mistake or error apparent on the face of the record
c) any other sufficient reason
d) the application must be brought without unreasonable delay.
The present application is premised on the ground that there is error apparent on the face of the judgement sought to be reviewed. Mistake or error apparent on the face of the record has been defined in various judicial decisions. In the case of Muyodi vs Industrial & Commercial Development Corporation & Another [2006] 1 EA 243 relied on by the applicant, the Court of Appeal described error apparent on the face of the record as follows: -
“In Nyamogo & Nyamogo vs Kogo (2006) 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 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 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 a court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”
The error apparent on the face of the judgement pointed out by the applicant is that the court overlooked material facts regarding the nature of the Respondent and the appellant’s claims over the suit land as filed in the lower court, that the judgement failed to answer substantial issues placed before the honourable court and that the judgement confers the appellant, though a trespasser, the right of ownership of the suit land yet the suit land is property of a deceased person subject to succession. My understanding of these issues is that they do not amount to error on the face of the judgement as defined herein above but point to and question the propriety and merit of the judgement dated 9/3/2023. This court became functus officio as far as the merits of the judgement is concerned and will not therefore have jurisdiction to deal with issues of the merits of the judgement.
Further, the judgement having been delivered on 9/3/2023, it was not until 26th July 2024 that the application was made. This was after an unexplained delay of more than one year. The delay was unreasonable.
I find that the grounds for review of the judgement as provided in section 80 Civil procedure Act and Order 45 Civil procedure Rules, 2010 have not been demonstrated. The application dated 26th July 2024 is therefore hereby dismissed. No order as to costs.
Orders accordingly.
Ruling read and signed at Vihiga and delivered this 16th January, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
Shijenje T. h/b for Maruja for the Appellant.
Achieng for the Respondent/Applicant.