Joseph Cheruiyot Peter Ngetich And Kimorong Mibei v Wilson Busienei & 19 Others [2014] KEHC 7453 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO.  160 OF  2007

JOSEPH CHERUIYOT

PETER NGETICH  AND

KIMORONG  MIBEI…................................... APPELLANTS/RESPONDENTS

=VERSUS=

WILSON BUSIENEI & 19 OTHERS…............ RESPONDENTS/APPLICANTS

RULING

The application before me seeks the Review and setting aside of the Ruling and Order  made on 7th August, 2013.  It also  asks this court to grant orders in terms of the application dated 10th January, 2008.

The main ground for seeking a review of the Ruling and  the Order  made on 7th August, 2013, was  that there was a mistake or error apparent on the face of the record.

The  Ruling and the Order are said to be based on a mix-up of issues.  Therefore the applicant believes that if the court had addressed its mind properly, the Ruling and order that it would have given  would have been different.

Mr. Kuloba, the  learned  advocate for the Applicant, submitted that whereas the application which gave rise to the Ruling dated  7th August, 2013, was dated 29th January, 2007, the Ruling  itself made reference to an application dated 8th January, 2007.

He pointed out that those two  applications were not at  all similar.  He explained that the application which was then in issue, (which is dated 29th January, 2007), was for the  execution of the Decree as  set out on its terms.

In  contrast, the application dated 8th January, 2007,  was said  to have been for the interpretation and the correction of the Award.

The Applicant asked this Court to review the Ruling and  the Order made on 7th August, 2013,  by finding that the Appellants required  leave of  the court before they could file an appeal arising from the decision of the Magistrate's Court.

In answer to the application, Mr. Nyachiro, the learned advocate for the Respondents, submitted that the application was fatally defective because the Order  sought to be reviewed was not  attached to the application.

The Respondents also submitted that there was no error  apparent on the face of the record.

The learned Judge was said to have made the wrong exposition of the law.  However, such a mis-construction of the statute was said to be incapable of review.

As far as the Respondents  were concerned, where a Judge made an error in his interpretation of the law, the only remedy would be an appeal.

The  error which the Judge  is alleged to have made was her  finding that the application fell  under the provisions of Section  75  of the Civil Procedure Act.

As the Applicants appeared to be challenging the view expressed by the Court, the Respondents submitted that they could only do so by way of an appeal.

In any event, if there was an error, and such error could only be found  by long-drawn reasoning, the Respondents submitted that that error was an  error that was not apparent on the face of the record.  For  that final submission, the Respondents relied on NYAMOGO & NYAMOGO ADVOCATES -VS-  KOGO [2011] 1 E.A. 173.

I have given due consideration to the submissions  made before me.  I have  carefully perused the Ruling,  the Order and the two applications dated 8th January, 2007 and 29th January, 2007, respectively.

The application dated 8th  January, 2007 was filed by the Defendants, whilst the application dated 29th January, 2007 was filed  by the Plaintiffs.

By the application dated 8th January, 2007, the Defendants  sough 3 substantive reliefs, as follows;

“(c)     There be a stay of execution/enforcement of  the Decreein this suit pending  the interpretation of the decree herein;

(d)       The honourable  court be pleased to interpret the decreeherein by interpreting the scope, the land involvedand land excluded and the basis for determining theshares and mode, extent and manner of enforcement, andissue such orders that such other orders be made   as are just and expedient toenable the proper and lawful enforcement  of the decree herein.

(e)      Pursuant  to (d) above, the Court do givedirections on which Land Parcels, namely L.R.No.  8822, 6617 and 8637 will be subject to the   execution of the decree and the extent andmanner of sub-division of the Land Parcels.”

The Defendants' reasons for seeking  those orders were that the Decree and Award were ambiguous; some parcels of land had already been compulsorily  acquired; and the scope of the land involved was not clear.

As  a result, the Defendants  felt that the Plaintiffs were deliberately targeting the parcels of land belonging to the Defendants, even  when such parcels of land were not the subject matter of the case.

In  my understanding of that application, it sought  the interpretation of the  Decree, so as to make it  clear about the land which was to be subjected to distribution.

That  appeared to be necessary because the Tribunal had, apparently, left out portions of the land, whilst the Government had  compulsorily acquired some other portions of the land.

Meanwhile, the Application dated 29th January, 2007,  sought  the following two (2) substantive reliefs.

“ 2.      THAT  there be a stay of survey, subdivision, or any other  or                                                further process in relation thereto, by the Respondents,in relation to land parcels No. L.R. 8822, 6617 and8637 pending the hearing and determination of thisapplication.

THAT the subdivision so far done, at the instances

of the Respondents or any other person, be  and

are hereby declared irregular, illegal, null, void

and inconsistent with the decree herein and

the same be canceled, together with the deed

plans drawn pursuant to the said subdivisions,

and any other action that may have been taken

after 2002. ”

The reason for seeking those orders was that the decree  had not been executed because  of the actions of the Defendants,  who had conducted illegal subdivisions, which were not consistent with the Decree.

In effect, the Plaintiffs  wished to have the Decree  given effect as it was, whilst the Defendants wanted a stay of execution of the Decree until it had been interpreted and made clear.  The Defendants consider the Decree too ambiguous, for execution.

The  point I  am making is that the two applications are different.  Secondly, neither  of the said applications sought the striking out of the appeal.

However, in the Ruling dated 7th August, 2013, the learned Judge commenced as follows:

“ The application is brought by way of Notice of Motion

under the Provisions of Order 50 Rules 1 and 42 Rules

1 & 2 of the Civil Procedure  Rules and Section 3 A and

75 of the Civil Procedure Act Cap 21.

The Applicants seek the following  Orders:

THAT  the appeal be struck out;

THAT  the costs of the application and the appeal be borne   by the Appellant”

Clearly the application dated 29th January, 2007 did not seek to strike out the appeal.  Therefore,  it is obvious that when the Court set out to determine an issue which did not flow from the application dated 29th January, 2007, there was a disconnect between the Ruling and the application.  That disconnect is apparent  on the face of the record.

It is so apparent that it got me thinking that there was no way that the learned Judge could have made such a mistake.

I  therefore revisited the proceedings leading up to the Ruling in issue.  The  record shows  that on 1st November,  2011, there was a consent order, fixing the application dated 10th January, 2008 for hearing on 6th December, 2011.

When that application came up for hearing, the three parties all agreed to file written submissions.  The  learned Judge allowed the parties to file their respective written  submissions.

It is clear, from the record, that the application dated 10th  January, 2008 was seeking the striking out of the appeal, because it had been filed without the leave of the court.

Earlier, on 17th December, 2009,  J.L.A. Osiemo J. had delivered a Ruling on the application dated 10th January, 2008.  His Ruling was on a Preliminary Objection, that had asserted that the attempt to strike  out the appeal could  not be dealt with by the court before the appeal was admitted to  hearing.

The learned Judge struck  out the Preliminary Objection, which  queried  the Court's  jurisdiction.  The  Court held that the Respondent to the Appeal ought to have  waited until the appeal  had been admitted, before he could  challenge the competency of  the said appeal.

That  meant that the application dated 10th  January, 2008 remained alive.  To my mind, that explainedMr. Kuloba's  submissions, that this court should;

“ review the order dated 7/8/2013,  and to find that the

Appellant required leave  from the Magistrate's

Court, before the appeal was filed – See Order 42 rule 1

(2)      of CPR.”

I therefore asked myself why this court should be called upon to make a finding on the issue as to whether or not leave to appeal was required, if that  issue had not featured in the application that gave  rise to the Ruling  which I have been asked to review.

My conclusion is that  the Ruling in issue was not in relation to the application dated 29th January, 2008.  It was on the application dated 10th January, 2008.

This conclusion arises from the fact that this is a court of record.  The record of the proceedings shows  that on 8th July, 2011, the parties  attended at the Court Registry,  and fixed a date for  the hearing of the application  dated 10th January, 2008.

The date which  was fixed  is 1st November, 2011.

On that date, the application was adjourned to 6th December, 2011.  And  on 6th December, 2011, Mr.  Manani advocate expressly made reference to the application dated 10th January, 2008.

In her Ruling, the learned Judge,Mshila J., made reference to the application dated 29th January, 2007.  She  indicated that the Court had  perused  the said application.  At no time did the court indicate that that  was the application that it was giving  consideration to.

In the final  analysis, I find  no reason, in law or in fact, to warrant the review sought.  The  application  has no merit.  It is therefore dismissed  with costs.

DATED, SIGNED AND DELIVERED, AT ELDORET,

THIS   17TH  DAY OF  JANUARY 2014.

…........................................

FRED A. OCHIENG

JUDGE.