RULING
Introduction
1. Vide a notice of motion application dated 16th April, 2025 and filed on an even date, brought under Order 45 Rule 1, Order 16 of the Civil Procedure Rules 2010, Section 1A and 1B of the Civil Procedure Act Cap 21 and Article 35 of the Constitution of Kenya 2010, the applicant seeks the following orders: -
a) THAT this Honourable Court be pleased to Review, Vary or Set-aside its Ruling delivered on 4th April 2025 disallowing the Defendant/Applicant Application dated 2nd April 2025 that sought to Summon the Deputy Director Land Administration one Mr. Nyabuto who is the Officer in Charge of the Land Registry, Ardhi House to produce Alienation Files No. 102749/40/GA/92 and 8788/V/27 in respect to land parcel 177 Kabarnet Municipality.
b) THAT this Honourable Court be pleased to issue Witness Summons to the said Mr. Nyabuto in charge of the Registry Ardhi House to produce Alienation Files No. 102749/40/GA/92 and 8788/V/27 in respect to land parcel 177 Kabarnet Municipality.
c) THAT the Honourable Court be pleased to re-open the Defence Case and allow the Alienation Files No. 102749/40/GA/92 and 8788/V/27 in respect to land parcel 177 Kabarnet Municipality be produced and adduced as evidence in the matter.
d) THAT the Honourable Court be at liberty to make such other or further Orders as it deems fit and expedient to meet the ends of justice.
e) THOSE costs of this Application be in the cause.
2. As can be discerned from the grounds on the face of the application and the averments contained in the affidavit of Francis Kosgei Argut sworn in support on 16th April 2025, the application is premised on the grounds that the alienation files No. 102749/AG/92 and 8788/V/27 in respect of land parcel 177 Kabarnet Municipality are material evidence that goes to the root of the land dispute; that Mr. Partoba Ojwang, an Assistant Land Administrator who had made a commitment to trace the alienation files failed to do so and informed the court that Mr. Nyabuto was the officer in charge of the registry Ardhi house and custodian of those files; that it will only be fair and just that Mr Nyabuto be summoned to produce the files as failure to do so will deny the court an opportunity to reach a fair and just determination/ decision in the case. Further, that the applicant’s property and proprietary rights will be threatened and the respondent will suffer no prejudice if the orders sought are granted.
3. In opposition, the respondent filed grounds of opposition dated 17th April 2025: -
1. THAT the order made on 4th April, 2025 ought to be challenged by way of appeal to the Court of Appeal as opposed to review by dint of Section 16 of the Environment and Land Court Act, No. 19 of 2011.
2. THAT the application is re-judicata as the Honourable Court pronounced itself on the same matters or matters that ought to have been raised in its ruling dated the 4th April, 2025.
3. THAT the application has been made belatedly after the close of the trial and amounts to a further attempt by the defendant to frustrate the expeditious dispensation of justice contrary to Articles 50 and 159 of the Constitution of Kenya, 2010.
4. The application was argued orally. The applicant relied on the application and the supporting affidavit. He submitted that he had demonstrated sufficient cause and cited the cases of R V Public Procurement Adminisrative Board (2018) e KLR and Pancras T Swai V Kenya Breweries Ltd (2005) e KLR.
5. The respondent relied on the grounds of opposition and submitted that the issues raised in the instant application are the same as those raised on 2nd April 2025 which the court determined; that there is no discovery of new evidence, no mistake has been pointed out and no sufficient reason demonstrated to warrant review of the ruling. He further submitted that having rendered its decision and the applicant having failed to appeal that decision, the court is funtus officio.
Analysis and determination
4. I have carefully considered the application, the affidavit in support and I find the issues for determination to be;
i) Whether there is a mistake or error on the face of the record or any sufficient reason to justify review of the ruling herein.
ii) Whether the application is res judicata
ii) Whether the Court is functus officio.
5. Section 80 of the Civil Procedure Act provides as follows: -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.
6. Order 45 Rule 1 of the Civil Procedure rules provides;
“(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 from whom 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 the judgment to the court which passed the decree or made the order without unreasonable delay.”
7. In Samba t/a JO Samba & Co Advocates v Mengich (Miscellaneous Application 7 of 2022), Murima J, stated; “The import of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was considered by the High Court in Miscellaneous Application 317 of 2018, Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR. Upon considering comparative jurisprudence, the Court crystallized the principles for consideration in reviewing its own decisions as follows;
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
vi. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
11.The Court of Appeal in Civil Appeal No 2111 of 1996, National Bank of Kenya v Ndungu Njau observed as follows in respect of reviews applications: -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 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 proceeds on an incorrect expansion of the law.’’
7. On whether there is a mistake or error on the face of the record or any sufficient reason to justify review of the ruling, the court finds that the applicant has not met the threshold for an order of review. He has not availed new evidence, pointed out any mistake or error apparent on the face of the record and failed to demonstrate sufficient cause.
8. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides;
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”
9. The Black’s law Dictionary10th Edition defines “res judicata” as “An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
10. This doctrine was expounded by the Court of Appeal in IEBC v. Maina Kiai & 5 others [2017] eKLR where the court held: -“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms: i. The suit or issue was directly and substantially in issue in the former suit. ii. That former suit was between the same parties or parties under whom they or any of them claim. iii. Those parties were litigating under the same title. iv. The issue was heard and finally determined in the former suit. v. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
11. To decide on whether an issue in a subsequent application is res judicata, the court should always look at the decision claimed to have settled the issues in question and the entire application and the instant application to ascertain;
i. What issues were really determined in the previous application;
ii. Whether they are the same in the subsequent application and were covered by the decision.
iii. Whether the parties are the same or are litigating under the same Title and that the previous application was determined by a Court of competent jurisdiction.
12. In the instant case, the oral application of 2nd April 2024 sought orders that summons do issue to Mr Nyabuto to produce alienation Files No. 102749/40/GA/ 92 and 8788/V/27 in respect to land parcel No. 177 Kabarnet Municipality. This prayer is similar to prayer 1 in the instant application. It is therefore not in doubt that the issues raised in both applications are similar and the parties litigating under the same title are the same. The instant application is therefore found to be resjudicata the oral application of 2nd April 2024.
13. On whether this court is functus officio, I am guided by the persuasive decision of the court of Appeal in Telkom Kenya Ltd v John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Ltd) [2014] eKLR, where the court citing with approval the case of Jersey Evening Post Ltd Vs Ai Thani [2002] Jlr 542 at 550 stated: -
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
14. This court having performed all its duties on the issue of summoning Mr Nyabuto as a witness and having concluded the proceedings, is functus officio.
15. Consequently, I find the application dated 20th February 2025 to be devoid of merit and l dismiss it with no orders on costs as it was not defended.
16. Orders accordingly.
Dated, signed and delivered virtually at Iten this 10th June, 2025.
In the presence of
Francis Argut Applicant
Mr Mogambi for the Respondent
Court Assistant: Lilian