Benard Gachie Kamau v Livingstone Wanyoike Kinyanjui, Fredrick Nganga Thuo, Michael Kinuthia Gatoto, Sptephen Muthama Mathu, Eustace Githaiga Ndirangu, Humphrey Malimu Lelech, Michael Ndichu Mburu, Robert Riungu Njoroge, Stephen Maore, James Wanyoike, Peter Munune Njoroge, Stephen Kiogora, Joel Kamatu Kiarie, Gideon Marubua Kiburu, Damaris Wacu Nduati, Esther Nyaguthii Githaiga & Ann Njeri Kamatu [2021] KEELC 1779 (KLR) | Review Of Judgment | Esheria

Benard Gachie Kamau v Livingstone Wanyoike Kinyanjui, Fredrick Nganga Thuo, Michael Kinuthia Gatoto, Sptephen Muthama Mathu, Eustace Githaiga Ndirangu, Humphrey Malimu Lelech, Michael Ndichu Mburu, Robert Riungu Njoroge, Stephen Maore, James Wanyoike, Peter Munune Njoroge, Stephen Kiogora, Joel Kamatu Kiarie, Gideon Marubua Kiburu, Damaris Wacu Nduati, Esther Nyaguthii Githaiga & Ann Njeri Kamatu [2021] KEELC 1779 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC APPEAL NO. 65 OF 2019

BENARD GACHIE KAMAU....................................................................APPELLANT

VERSUS

LIVINGSTONE WANYOIKE  KINYANJUI.................................1ST RESPONDENT

FREDRICK NGANGA THUO......................................................2ND RESPONDENT

MICHAEL  KINUTHIA GATOTO...............................................3RD RESPONDENT

SPTEPHEN MUTHAMA MATHU................................................4TH RESPONDENT

EUSTACE  GITHAIGA NDIRANGU...........................................5TH RESPONDENT

HUMPHREY MALIMU LELECH................................................6TH RESPONDENT

MICHAEL NDICHU MBURU.......................................................7TH RESPONDENT

ROBERT RIUNGU  NJOROGE....................................................8TH RESPONDENT

STEPHEN MAORE.........................................................................9TH RESPONDENT

JAMES WANYOIKE.....................................................................10TH RESPONDENT

PETER MUNUNE NJOROGE......................................................11TH RESPONDENT

STEPHEN KIOGORA..................................................................12TH RESPONDENT

JOEL KAMATU KIARIE.............................................................13TH RESPONDENT

GIDEON MARUBUA KIBURU...................................................14TH RESPONDENT

DAMARIS  WACU NDUATI.........................................................15TH RESPONDENT

ESTHER NYAGUTHII GITHAIGA.............................................16TH RESPONDENT

ANN NJERI KAMATU..................................................................17TH RESPONDENT

(Being An appeal against  the Ruling and Orders  at Thikaby the

Honourable  A.M Maina ( Mrs) Senior Principal  Magistrate

on  15th October 2019 in Civil Case  No.879 of 2019)

JUDGMENT

The Respondents herein were the Plaintiffs while the Appellant was the Defendant in ThikaCMCC 879 of 2019 . By a Notice of Motion Application dated  14th January 2019, the Defendant ( Appellant) sought for orders that;

1. That  this Court be pleased to review  and set aside its Judgment  made on 10th December 2018.

2.  That the  Court does make orders dismissing  the Plaintiffs case  with costs to the  Respondents.

3.  That the cost  of this Application be provided for.

The Application was premised on the fact that  there is new and overwhelming  evidence that the 1st Plaintiff( 1st Respondent)  fraudulently obtained  share certificate  and receipts produced in Court. That the receipts and  share certificates  produced in Court  did not emanate from Githunguri Constituency  Ranching Company. Further that the  Plaintiff(1st Respondent)   is currently facing  various charges  relating to obtaining  registration of the suit premises by false pretenses  and in light of the new evidence , the Plaintiffs title is obtained  by fraud and cannot  give any rights  to the suit land.

In his Supporting Affidavit, Bernard Gachie Kamau, averred that a  Judgment was entered  in favour of the Plaintiffs on 10th December 2018, and pursuant to the Judgment , the  Plaintiff (Respondent) was awarded land parcel no.  Ruiru/Kiu /Block 2/3758. That while the case was pending, the 1st Plaintiff and one Edward Samuel Ngugi,  were charged at  the Chief Magistrate Court  at Milimani  Criminal Case  No. 1863  of 2017 . That the prosecution was commenced and  after documents  were examined  by the document examiner  and were found not to originate  from Githunguri Ranching Company.  That the documents produced  being title deed for Livingstone  Wanyoike  Kinyanjui , Share Certificate  for Samwel  Edward Ngugi , Clearance Certificate, a copy of the register  of members  and two receipts  for Samuel  Edward Ngugi  for payments made for the water project. That the forgery was also reported and  Samuel  Edward Ngugi  and James Thendu  were charged at the Chief magistrates Court  at Thika in Criminal  case No. 3105 of 2017 . That he did not have the said documents or the document examiner report when he field his documents, hence he could not attach the same.

That when the Criminal case was being investigated, he managed to  get one Gerald  N. Ngugi  who explained at length  how the share certificates and the titles were obtained and he has made an affidavit explaining the entire process. Further that he has also  compared the Title Deed produced as  P. Exhibit 4  with several Titles issued by the Thika  Lands Registry  and its obvious the exhibit could not have emanated from the said land Registry as it lacks the government printers batch  release code   and it also lacks the  Powers of Attorney  for the signing Land Registrar.

That upon the filing of the instant case, the 1st Plaintiff filed a case at the  Directorate of Criminal Investigations  and a criminal case  No. 1355 of 2014 was commenced  against the Directors of Githunguri  Ranching Company Limited. That faced with the overwhelming evidence of fraud, the 1st Plaintiff(Respondent) and his witness  have filed a Constitution Petition to stop the prosecution . That there exists a big body of evidence  depicting fraud   by the 1st Plaintiff which was not  available  at the time of Pre trial Directions  and hearing of the case. That the Director who  is alleged to have signed P Exhibit 1 has denied signing the same. That in the course of the  Investigations, the Directorate of the  Criminal Investigations  was able to establish  that the father of Edward  Samuel Ngugi, the late Francis Kamauwas not a shareholder  and had not taken any shares   from Githunguri  Ranching Company. That he has the  documents to  show that he is the owner  and the current and former Directors have recorded  their statements with the Directorate of Criminal Investigations, giving a chronology of the events that led to his acquiring the suit property.

The Application was opposed and  Fredrick Nganga  Thuo,  the 2nd Plaintiff( 2nd Respondent) who swore a Replying Affidavit on  28th August 2019,and averred that  they became  aware of the sale of  L.R Ruiru/Kiu/ Block 2/3758, when offers were made by the 1st Plaintiff (1st Respondent)   to the  public through advertisements  placed on the suit property  as well as on the flyers and being satisfied that he was the registered owner, they individually approached him and bought the plots for valuable considerations and the said transactions were being done in 2008 to 2010. That upon subdividing the   suit property, the Plaintiffs where  the bonafide owners and that they are owners in  possession and occupation to the various plots. That the Application as filed is an abuse of the Court process and only   intended to frustrate  them from enjoying the fruits of their Judgment that was obtained lawfully, since  no new evidence  is being brought by the Defendant  that was not in his possession.

That on 10th December 2018, the Court  entered judgment in their favour, where it found that they are the legal owners of the plots subdivided  from  L.R 2/3758. That they are strangers to the allegations that the  1st Plaintiff(1st Respondent)  has been charged at the Chiefs Magistrate Court . That it is  fanatical for  the Defendant(Appellant)  to  allege that they have filed frivolous  Petitions and Applications in the High Court, of which they are not parties to. That they are bonafide purchasers for value without notice who generated an interest in the  sale of the various plots  and they conducted their due diligence. That the Defendants should have filed an Application at the Appellate Court,  seeking to reverse the findings of this Court . That the Defendant is now attaching a forensic Document Examination report dated 21st September 2017,  which  outlines numerous  considerations made  by a document examiner, who was not called as a witness for his evidence to be challenged.  That it would not be prudent to  set aside the Judgment  based on baseless allegations.

The 1st Plaintiff Livingstone  Wanyoike Kinyainjui,also filed a Replying Affidavit sworn on  1st April 2019,and  averred that after the entry of the Judgment by the Court, the Defendant ( Appellant) has done  all he could do to frustrate  registration of the said order  at the Lands office. That the Defendant (Appellant) is working with Githunguri Constituency  Ranching Company Limited,who he had called as witnesses  and have restricted  the suit property on claim that it is  an open space and the Application for review is a further attempt  to frustrate the Plaintiffs( Respondents) from attaining the fruits of their Judgment. That the case has been in Court since 2010, and the Plaintiffs(Respondents) filed all documents they would be relying on and the same were supplied to the Defendant and Defendant(Applicant) had ample time to look at them and examine them. Further, that as per the Charge Sheet, the Police file existed since 2014, and the Applicant and his witnesses were listed as witnesses and the Applicant all along knew of the existence of the  complaint and cannot claim that the same is new evidence.  That various documents were produced by the Plaintiffs, which the Defendant(Applicant) had ample time to cross examine on, and the Defendant had time to subject them for examination. Further, that the examination by an expert is alleged to have been done on 21st September 2017, when the suit was still pending and the Defendant did not bring the document examiner as his witness nor the said document examiner report for cross examination. That the only way the Plaintiffs (Respondents) can querry the said expert report is the production of another report by their own examiner, but that the Court cannot be swayed to clear evidence by people who work on behalf of the Defendant(Appellant).

That the  fact that the 1st Plaintiff ( Respondent) has been  charged  does not  make a case  as he remains innocent until proven guilty.  The cases date back to 2014 and 2017  and the cases were well within the knowledge of the Defendant  and that none of the cases have been determined to the fullest  to indicate criminal element . That one Gerald Ngugi, is a friend to the Defendant and his allegations cannot form a basis for review. That the Defendant had a copy of the title and he would have cross examined on it  and the office of the Land Registrar ought to have been called if he was of the opinion that the same was not genuine. That the officials of Githunguri Constituency Ranching Company, were not barred from testifying by complaints of the Plaintiff,  and no evidence has been  tendered to conclude that the 1st Plaintiff was fraudulent. That the Defendant(Appellant) cannot be allowed to collect evidence from people, he never called to testify and the filing of the Application is an attempt by then  Applicant to argue his case afresh.

The Application was canvassed  by way of written submissions and on  15th October 2019 , the Court  delivered its Ruling, and dismissed the Appellant’s Application  and held that;

‘ In  my view, the Defendant  is attempting to bring in evidence  that he ought to have brought  in his Defence . He is  also indirectly asking this Court to  sit on an appeal against its orders. It is my finding that the issues  raised herein  ought to have been raised  in  an appeal at the High Court . The Application dated  14th  January 2019,  lacks  merit and I dismiss the same with costs to the  Respondents .’

The Appellant being dissatisfied with the said Ruling  filed an Appeal against the said decision vide Memorandum of Appeal dated 7th November 2019 , on the  grounds that  ;

1. The Learned  Magistrate erred  in failing  to appreciate  there was new compelling evidence  necessitating  a review of Judgment .

2.  The Learned  magistrate erred in  failing to review  the Judgment on the face of overwhelming  evidence of fraud.

3.  The Learned Magistrate erred in  equating  an Application for review  to an appeal against her orders.

4.  That the Appellant therefore seeks  that the orders of the lower Court  be set aside  and they be substituted  with an order allowing  the Application dated 14th January 2019.

On  16th April 2021, the Court directed that the Appeal  be canvassed by way of  written submissions and in compliance with the said directive,  the Appellant filed his written submissions through the Law Firm of  Sim Advocates LLPdated17th May 2021, and submitted that the  holding of the trial Court  that no ground  had been established  for the grant of Review Orders was erroneous in  view of the overwhelming evidence of fraud  that the  documents annexed to the  Application shed light  on the matter . That there exist  overwhelming evidence of fraud and that was not  available at the time of  Pre trial Hearing  of the case, which evidence came to the  attention of the Appellant after the Judgment.

It was further submitted that the Appellant exercised due diligence  throughout the hearing of the case and the evidence  introduced  through the Application dated  14th January 2019,  was not within his Knowledge as he was neither a complainant  nor a witness in the criminal case  and had the trial Court  interrogated the documents, it would have  established that the Respondents title to the suit property  was colored with  fraud. The Appellant relied on the case of  Khalif Sheikh Adan…Vs… Attorney General ( 2019) eklr  which facts  fit to the facts of the instant Appeal, in which  the Court allowed an Application for Review. It was submitted that at hand, there is an apparent   miscarriage of justice  if the Court does not intervene.

The Appellant further relied on the case of  Attorney General …Vs… Torino  Enterprises Limited ( 2019)  Civil Appeal  ( Application) No. 84 of 2012, and submitted that the same shows the lengths  apex Courts  go to ensure the proceedings  before them  produce a just outcome,  reflective of the facts obtaining  in any particular disputes. That upon being pointed to proof of fraud, the Magistrate declined the invitation to set aside her Judgment. The Court was therefore urged to allow the Appeal.

The 2nd to 17th Respondents filed their written submissions dated 25th June 2021  through the law Firm of  Gachie Mwanza & Company Advocates, who submitted that the  basic structure of consideration  in an Application for  review  of a Judgment is  guided by the principles of discovery of new and important matter  of evidence, an error  apparent on the face  of  Record or any  other sufficient  reasons. They relied on the case of Muyodi …Vs…Industrial Commercial Development Corporation & Anor (2006)1EA 243. They further relied on the case of  Pancras  T. Swai …Vs… Kenya Breweries  Limited (2014) eklr  where the Court held that;

“ The discovery  of new and important  matter or evidence  or mistake  or error  apparent on the  face of the record or for any other sufficient reason  in Rule 1 of Order 44 (now  Order 45  in 2010  Civil Procedure Rules ) relates to issues of facts  which  may emerge from evidence . The discovery  does not relate  or refer to issues of law.The exercise  of due diligence referred to in  rule 1 refers  to discovery of facts  but does not relate to ascertainment  of existing  law which  the Court is deemed to be alive to’

The Court was called upon to look at the new evidence that the Appellant sought to rely on and  that  the trial Court having analyzed    the facts, it  came to a conclusion that there was new and important evidence  that the Appellant had discovered that could not  have been within his knowledge  with due diligence. That all the issues raised in the Appeal were conclusively considered  and determination made by the trial Court  and that the  Appellant is seeking to re open his case  and have a second bite at the  cherry.

It was further submitted that  the Appellant made allegations of fraud in an Amended Defence and Counter Claim, but the same were never proved or led evidence to the same and a determination was made on the same. That  the introduction of evidence  that was all along within the Appellant’s  knowledge at the review stage  amounted to asking the trial Court to sit on appeal  against its orders . Further, that the Appellant failed to prove the components  of review provisions  and therefore the Appeal should be dismissed.

Being a first Appeal, it is the duty of the first appellate court to re-evaluate the evidence led before the trial court both on points of law and facts and come up with its own findings and conclusions. See  the  case of Kamau …Vs…Mungai [2006] 1 KLR 15,where the Court  held that;

“Being a first appeal, it is the duty of the court to re-evaluate the evidence, assess it and reach its own conclusions remembering that it had neither seen nor heard witnesses hence making due allowance for that.”

Further as the Court determines this Appeal, it takes into account that it will only interfere with the discretion of the trial Court where it is shown that the said discretion was exercised contrary to the law or that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. See the case of Ocean Freight Shipping Co. Ltd….Vs.. Oakdale Commodities Ltd(1997)eKLR, Civil App.No.198  of 1995,where the Court held that:-

“This is of course not an appeal to us from the decision of the single Judge. The discretion given by Rule 4 is exercised on behalf of the court by a single Judge and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong”.

The Court has carefully read and considered the written submissions, the Record of Appeal, the grounds thereof and the Judgment by the trial Court and finds that the issue for determination is Whether the Appeal is merited.

The Application by the Appellant in the trial Court was seeking for  review of the Judgment of the trial Court. As the Court seeks to re-evaluate the evidence adduced, the Court will be guided by the provisions of sections 80, 63 (e) and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules which provide that:

“Section 80. Review

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.”

Further Order 45, rule 1. ] Application for review of decree or order.

“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 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 judgment to the court which passed the decree or made the order without unreasonable delay.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

Order 45 of the Civil Procedure Rules, 2010is very explicit that a Court can only review its orders, if the following grounds exist: -

(a)There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or

(b)There was a mistake or error apparent on the face of the record; or

(c)There were other sufficient reasons; and

(d)The application must have been made without undue delay.

For purpose of Review of the Judgment of the Court in the instant case, the Appellant sought to rely on the grounds that there was discovery of  new and important evidence, which after the exercise of due diligence, was not within the knowledge of the Applicant at the time the Decree was passed .

Amongst the  new evidence as alleged by the Appellant, is that  there is evidence that the 1st  Respondents  fraudulently obtained  share Certificate and receipts produced in Court  and that he is facing  charges  relating to obtaining registration  of the suit land by false pretenses . Among the documents produced in support of the said  ground is a charge sheet  in Criminal No. 1863 of 2017. A charge sheet in  Criminal caseNo. 3105 of 2017,a document examiner Report dated 21st September 2017, Statement of one  Gerald  N. Ngugi , comparison of Titles  issued by Thika Lands Registry  and the title produced by the  Respondents in evidence  and  a further charge sheet in which Directors of the Githunguri  Constituency Ranching  Company Limited, were charged in  criminal case No. 1355 of 2014.

The suit was filed in 2010, and first proceeded on the Plaintiffs case  on 3rd June 2015,and the final witness in this case  testified on  20th July 2018. The documents and evidence that the  Appellant seeks to rely on are  documents dated between 2014 and 2017 . Further the ground upon  which the Review is premised on is that the  1st  Respondent fraudulently acquired the documents adduced in Court .  It is not in doubt that  the statements that the  Appellant seeks to rely on were recorded on 17th May 2011, during the pendency of the suit. It is further not in doubt that  on 22nd  June 2016, the Appellant sought to  adduce more evidence and the said  Application was dismissed by the trial Court . In his Amended  Statement of Defence dated 13th November 2014, the  Appellant averred that the title documents held by the  Respondents  were obtained  by fraudulent misrepresentation and  using falsified documents.

The Appellant can therefore not turn around and claim to not have had evidence to show that the  alleged documents were fraudulent. The Appellant, in the Court’s considered view did not need the Documents Examiner’s Report from the criminal case, if in his own pleadings he had pleaded that the said documents were falsified. Then he had an obligation to prove fraud to the Court by having the said documents examined. The title deed which the Appellant alleges to have examined was produced in evidence by the Respondents and therefore there was nothing that was stopping the Appellant from comparing the two.

Is there discovery of new or important evidence?, certainly not. The Appellant had pleaded on the alleged falsified documents  that he needed to have proved the same. In its Judgment, the Court found that the Appellant had not proved fraud and therefore the matter  had been dealt with by the  Court and the evidence seeking to be adduced  were within the Appellant’s reach. See the case of Pancras T. Swai v Kenya Breweries Limited [2014] eKLRwhere the Court of Appeal held that:

“InFrancis Origo & another v. Jacob Kumali Mungala(C.A. Civil Appeal No.149 of 2001 (unreported), the High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review.  This court stated:-

“our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.  Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction.  They have now come to a dead end.  As for this appeal, we are satisfied that the learned Commissioner was right when he found that there was absolutely no basis for the appellant’s application for review.  We have therefore no option but to dismiss this appeal with costs to the respondent.”

The Court has considered the reasons given by the Appellant for seeking an order of review. The Court finds and holds  that the Appellant has not satisfied the requirements for grant of the orders of review.  The Court agrees with the trial Court that the Appellant is seeking to bring in new evidence which he ought to have adduced and therefore not entitled to the  orders of Review as sought. Therefore, it follows that this Appeal is not merited.

Having now carefully re-evaluated and re-assessed the available evidence before the trial court and the Memorandum of Appeal together with the written submissions, the Court finds that the trial Magistrate arrived at a proper determination and this Court finds no reason to upset the same.

The upshot of the foregoing is that the Appellant’s Appeal herein is found not merited and consequently the said Appeal is dismissed entirely and the Ruling and Order of the trial court is upheld.  The Respondents will have the costs of this Appeal.

It is so ordered.

Dated, signed andDelivered atThikathis30th day ofSeptember, 2021.

L. GACHERU

JUDGE

Court Assistant – Kuiyaki