BENSON BERNARD MBUCHU GICHUKI v KENNETH KIAGIRI MWANGI & another [2012] KEHC 4266 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Suit 3729 of 1991

BENSON BERNARD MBUCHU GICHUKI............................ PLAINTIFF

VERSUS

KENNETH KIAGIRI MWANGI…………….……..….....1ST DEFENDANT

NELLEON DEVELOPMENT CO. LTD….………..…...2ND DEFENDANT

RULING

On 31st January 2012, the plaintiff herein filed a Notice of Motion expressed to be “ex parte Notice of Motion for Review of Judgement under certificate of urgency” under the provisions of sections 1A and 1B of the Civil Procedure Act Cap 21 and Order 51 rule 1, Order 45 rule 2(2) of the Civil Procedure Rules and all other enabling provisions of the law. By the said motion the plaintiff seeks the following orders:

1. That the judgement made on the 8th day of August 2008 be set aside or reviewed and the Applicant/Plaintiff be reheard afresh in accordance with the law without any further delay on the ground that the Applicant has found new and other evidence which he could not have with due diligence adduced on the hearing of the above case, namely a copy of proceedings in the Criminal case No. 6538 of 1991 and any other evidence that he shall adduce at the hearing hereof which application is supported by the annexed affidavit of Benson Bernard Muchu Gichuki - the Applicant.

2. That the OCS – Pangani Police Station be ordered to bring to court the OB containing reports between April 1991 and June 1991.

Although no grounds were stated on the face of the said application and it was not expressly indicated on the face of the application that it was supported by any affidavit, the said omission is excusable, taking into account the fact that the applicant is a layman, although he has, after his name, a raft of quasi-legal honours. Therefore taking into account the fact that the application was filed together with two affidavits sworn by himself on 30th January, 2012, I am of the considered view that this is the kind of procedural lapse that is curable under the contemplation of Article 159(2)(d) of the Constitution. As no issue was taken on the said issue and as I am of the opinion that the said lapse is not substantial I, accordingly, will disregard the same.

As already stated the motion is supported by two affidavits both dated 30th January 2012 and baptised “supporting affidavit” and “verifying affidavit” respectively. In the supporting affidavit the plaintiff, after disclosing his postal address states as follows:

1. That I am the Plaintiff/Applicant herein above acting in person and therefore competent to swear this affidavit.

2. That I pray the Honourable Court now considers the evidence of PW4 in the Criminal Court No 6538 of 1991 a Mr. Cyrus Wanjohi Njamaita hereby annexed.

3. That what I have deponed herein above is true to the best of my knowledge, information and belief.

The verifying affidavit on the other hand, as the name indicates, only verifies that he is the maker of the pleadings herein and that they are correct to the best of his knowledge, information and belief.

Together with the foregoing documents, the plaintiff also annexed a copy of the proceedings in Nairobi Chief Magistrate’s Court Criminal Case No. 6538 of 1991. Again the said proceedings were not were not annexed in strict compliance with rules 9 and 10 of the Oaths and Statutory Declarations Rules which provide:

9.  All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.

10. The forms of jurat and of identification of exhibits shall be those set out in the Third Schedule.

However, as no issue was raised with respect to compliance therewith and pursuant to the provisions of Order 19 rule 7 of the Civil Procedure Rules, I am prepared to excuse the said procedural oversight.

On its part the 2nd defendant filed grounds of opposition dated 9th March 2012 which state as follows:

1. That the application is bad in law, incompetent, misconceived and an abuse of the court process.

2. That the application fails to meet the requirements as set out under Order 45 Rule 1 (1) (b) of the Civil Procedure Rules under which an application for Review can be considered.

3. That the Applicant has not adduced “new and important matter or evidence” to warrant a review of the judgment entered on 8th August 2008 and has further failed to demonstrate his inability to obtain the said ‘new evidence’ at the time when the judgement herein was made.

4. That a copy of the judgement in Criminal Case No. 6538 of 1991, which proceedings the Applicant seeks to introduce in his application, was produced by the applicant at the hearing of the instant suit as Exhibit No. 5. The said judgement conclusively took into account all the evidence adduced by the Applicant’s witnesses and consequently the proceedings therein do not constitute any new evidence.

5. That a reading of the proposed PW4 evidence in the Criminal Case No. 6538 of 1991 doe s not disclose any new relevant evidence an in any event the evidence has no bearing at all on the present case.

6. That nothing prevented the applicant from calling the said PW4 at the hearing of this suit and the current application is brought in bad faith.

7. That without prejudice to the foregoing, the purported ‘new evidence’ was available for adduction at the hearing of the suit and the Applicant deliberately and/or negligently avoided producing the same.

8. That the Applicant is guilty of inordinate delay in bringing this application as the judgement sought to be reviewed was delivered on 8th August 2008. The inordinate delay has not been justified or explained by the Applicant.

9. That the application is untenable or manifestly groundless as to be utterly hopeless and should be dismissed with costs.

In his submissions the plaintiff prayed that the evidence adduced by PW-4 in the said case be considered by the Court since he was unable to produce the same during the hearing. According him, this is a new evidence because on 10th April 2006 he had requested for a copy of the said proceedings but were not availed to him until January 2012 which is 6 years later. It was only after he obtained the same that he was able to file the present application. According to him the said PW-4 had testified that the second defendant in this suit who was the rightful owner of the suit premises was agreeable to his plot being leased to a Jua Kali person (the applicant herein) by his brother, the 1st defendant. According to the applicant, that evidence was not challenged in cross-examination but he was unable to present this evidence to Justice Khamoni who decided that the Minister (read the 2nd defendant’s director herein) was not a party to the lease agreement, a fact which was incorrect. When he wrote to the said Minister’s company, (the 2nd defendant herein), that he had been conned by the 1st defendant, the Minister, whom he knew very well respondent that he was not letting out his premises and hence the need to have the Occurrence Book (OB) produced. He therefore wishes the evidence to be considered since its effect is that he allowed his property to be let out by the 1st defendant.

The application  was opposed by Ms. Njoki Gachehe, learned counsel for the 2nd defendant, who submitted that the plaintiff had not indicated in his affidavit the reason why he did not adduce the said new evidence. She submitted that the copy of the judgement whose proceedings are sought to be adduced was produced at the hearing as exhibit 5 and that in the said judgement the trial Judge took into account all the evidence adduced and hence the said proceedings cannot constitute new evidence. According to counsel the evidence of PW-4 does not disclose anything new to warrant a review. It is further submitted that nothing prevented the applicant from calling the said PW-4 at the hearing hence the application is brought in bad faith. The applicant, it is contended, is guilty of inordinate delay because judgement was delivered in 2008 and the delay has not been explained. Accordingly, counsel submits that the application is untenable and ought to be dismissed with costs.

Having considered the application, the supporting evidence in form of affidavit, grounds of opposition on record as well as submissions, this is my view of the matter.

In order to merit a review sought by the applicant under the provisions of Order 45 rule 1, of the Civil Procedure Rules, certain requirements must be met. The said provision states as follows:

“(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.”

The decision that is sought to be reviewed was given by Khamoni, J on 8th August 2008. Prima facie, the application is brought after an inordinate delay and unless there is a sufficient reason for the delay, that lapse in time, running into a period of more than 3 years may defeat an application for review. Although, the affidavit in support is silent on the reason for such delay, the applicant stated from the bar that despite applying for the proceedings in which the evidence of PW-4 sought to be introduced were given, he did not receive the same until January, 2012. There is, however, no evidence showing that any such requests were made since there is no document annexed to the affidavit to support this contention.

After hearing the parties the learned judge (Khamoni, J) was of the view that:

“Apart from the fact that the plaintiff failed to adduce evidence to prove the expenditure he claimed he incurred as a result of his lease transaction with the 1st defendant, I hold the view that if indeed he suffered loss in that respect, that loss was of his own making without any obligation on the part of any of the Defendants to compensate him. He paid no rent and suffered no penalty for his illegal possession and occupation of the suit property”.

It is clear therefore that apart from the issue of non-payment of rents for the period of possession of the suit premises, the learned trial Judge also dismissed the suit because the plaintiff failed to prove his alleged losses. The plaintiff now claims that had the evidence of PW-4 been taken into account, it would have changed the learned Judge’s decision. Even if we are to believe that the plaintiff sought for the copies of the proceedings containing the said evidence, that fact alone would not have prevented that evidence from being adduced. The plaintiff knew the nature of the evidence that the said witness had adduced in the criminal case and if he wanted, nothing, at least as far as the record goes, would have prevented him from calling the said person to give the same evidence in this suit. Accordingly, it cannot be said that the evidence that the plaintiff intends to adduce now, 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. This evidence was available and the only thing the plaintiff needed to do is to exercise due diligence by calling PW-4 as his witness in these proceedings. The plaintiff has not told the court what difficulty, if any, there was in calling the said person to give evidence.

However, even if for argument sake it could be accepted that that evidence was not, despite due diligence, available, in my view an application for review should not be granted if it will result into the orders, which were not contemplated. In this case, the Court heard the parties and found as a fact, whether rightly or otherwise, that the applicant did not prove the expenditure claimed. Even if it were to find that the plaintiff went into possession with the consent of the 2nd defendant, I, with due respect, do not believe that such finding would have materially changed the learned Judge’s decision in light of the foregoing finding on the failure to prove  expenditure. Without appealing against the learned Judge’s finding that the plaintiff failed to prove his expenditures, a review would be a futile exercise and courts do not grant orders in vain. A review, it has been stated time without a number, is not and should not be a substitute for an appeal since the grounds for an appeal are not necessarily the same as grounds for review. See Kisya Investment Ltd. vs. Attorney General & Another Civil Appeal No. 31 of 1995andNdungu Njau vs. National Bank of Kenya Limited Civil Appeal No. 257 of 2002.

The foregoing findings apply to the application for the production of the OB since no basis has been laid for the same and no explanation has been given why the same was not produced at the hearing. A review is not an avenue by parties to fill in the banks that were left during the hearing, but which were, due to negligence, inadvertence, or even accident, omitted. To do so would defeat the well-known legal maxim that litigation must come to an end.

Accordingly, the Notice of Motion dated 31st January 2012 fails and the same is dismissed with costs to the 2nd defendant.

Ruling read, signed and delivered in Court this 4th day of June 2012

G.V. ODUNGA

JUDGE

In the presence of:

In Person  Applicant

Ms Njoki Gacheche  for the 2nd Respondent