Kaguongo v Kahuthia [2022] KEHC 14330 (KLR)

Kaguongo v Kahuthia (Civil Appeal E018 of 2021) [2022] KEHC 14330 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14330 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Civil Appeal E018 of 2021

CM Kariuki, J

October 19, 2022

Between

Stanley Maira Kaguongo

Applicant

and

Isaac Kibiru Kahuthia

Respondent

(Being an appeal from a judgment dated 17{{^th}} November 2016 by Hon A.P Ndege Principal Magistrate in Civil Case No. 217 of 2014 at Nyahururu Chief Magistrate)

Ruling

1. By a notice of motion dated May 11, 2022, the applicant seeks review or setting aside and judgment delivered on February 17, 2022 on grounds set out in the motion, namely:-I.That the trial court dismissed the appellant/applicant's appeal without considering the appellant's written submissions, which were filed in court on December 15, 2021. II.No appeal has been preferred against the judgment delivered on February 17, 2022. III.The appellant/applicant only discovered that his written was not placed in the court when the judgment was read.IV.That the appellant/applicant has filed this application without unreasonable delay.V.The respondent will not suffer any prejudice if the orders sought are granted, and it is in the interests of justice that the judgment made and delivered by the court on February 17, 2022 be reviewed.

2. The application is supported by an affidavit of Irene Njeri Wamithi, sworn on May 11, 2022.

3. The application is opposed, and parties were directed to canvass the same motion via submissions.

Applicant's case and submissions The facts 4. The applicant, dissatisfied with the judgment of AP Ndege, Ag senior principal magistrate, delivered on November 17, 2016 and the decree issued on December 16, 2016 in Nyahururu SPCCC No 217 of 2014, filed this appeal through the memorandum dated December 19, 2016.

5. On October 7, 2021, both counsels agreed to canvass the appeal through written submissions. Consequently, parties were ordered to file and serve their written submissions within 60 days. The court also directed that the appeal be mentioned on December 16, 2021 to highlight the submissions.

6. Complying with the court's directions, counsel for the appellant filed her written submissions on December 15, 2021.

7. On December 16, 2021, counsel for the applicant confirmed to the court that he had filed the applicant's written submissions. This is clear from the court proceedings. Accordingly, copies of the court proceedings and submissions received and date stamped by the court on May 11, 2022 and December 15, 2021, respectively marked as 'INW-1' and 'INW-2 respectively, are annexed to the supporting affidavit sworn by Irene Njeri Wamithi on May 11, 2022.

8. The respondent and his counsel did not attend court on December 16, 2021, and the court observed that he had not filed his written submissions. Consequently, the court ordered the respondent had a window of 14 days to file and serve his written submissions. It also reserved judgment to be delivered on February 17, 2021. These facts are clear from the court proceedings taken on December 16, 2021.

9. This honourable court delivered its judgment on December 17, 2021. In its judgment, the court stated that none of the parties filed their submissions on the appeal as ordered on October 7, 2021. This was notwithstanding that the applicant had filed his submissions on December 15, 2021.

Submissions 10. This honourable court has the power to review its judgment. This power is donated to court under section 80 of the Civil Procedure Act and order 45 rules 1, 2, and 3 of the Civil Procedure Rules, 2010. The power donated to court under section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules is discretionary and should therefore be exercised judiciously.

11. The applicant has, through the application, sought for review of the judgment on the ground that there is a mistake or error apparent on the face of the record.

12. The mistake or error on the record is that the court failed to consider the appellant's written submissions, which had already been filed by the time it was writing its judgment.

13. Reliance is made on the case ofNyamogo & Nyamogo v Kogo (2001) EA 17,4,which was relied upon in the case of Jeremiah Chelanga (suing as the guardian Ad Litem of John Chelanga Chepkonga) v Board of Management Kamatony Primary School and 3 Others (2021).

14. Under paragraph 7 of his replying affidavit, the respondent has deposed that despite the submissions not being on record, the court considered the applicant's evidence on merit as well as the law in arriving at its determination.

15. Reliance is also made on Jeremiah Chelanga (suing as the guardian Ad Litem of John Chelanga Chepkonga) v Board of Management Kamatony Primary School and 3 Others (supra)

16. A review may be granted whenever the court considers that it is necessary to correct an apparent mistake or error on the part of the court. A also relied on is the case of National Bank of Kenya Limited v Ndungu Njau (1997) eKLR.

17. It is clear from the record that the mistake or error of the subject of the application is that the court failed to consider the applicant's submissions to the appeal even after it had acknowledged they had been filed in court. For this reason, a review of the judgment made and delivered on February 17, 2022 is sought.

Respondent's case and submissions 18. In opposition to the application, the respondent contends, it is not in dispute that while delivering its judgment gave a well-reasoned judgment having relied on the applicable principles of the law; the evidence on record was also correctly relied on, and as such, the decision to dismiss the appeal would have been a ground of an appeal and n valid reason to warrant the review sought is manifest.

19. Reliance is made on the case of Richard Francis Malelu v Odhiambo Asher & Another was cited in Nyamogo & Nyamogo advocates v Moses Kipkolum Kigo which held that: - Which add that, mere error or wrong or an erroneous view of evidence or law is certainly no ground for a review. However,h it may be a ground for appeal.

20. The court has the jurisdiction to review its judgment. However,r the same is limited,d and the same ought to be exercised within the framework of section 80 of the Civil Procedure Act and order 45 rule 1. The jurisdiction and the grounds are set out. This court would be significantly misdirected if it allowed a review application on grounds other than those set out under the guise of exercising inherent jurisdiction. Reliance is made on the case of Albert Yawa Kaptsenga v Kenya Revenue Authority, Nairobi ELRC No 713 of 2021.

Issues Analysis And Determination 21. After going through the pleadings, proceedings, and parties' submissions, I find the issue is whether the court made a mistake in failing to consider the applicant's submissions and whether the same prejudiced the applicant and the order regarding costs.

22. The notice of motion dated May 11, 2022, the applicant seeks review or setting aside judgment delivered on February 17, 2022 on grounds set out in the motion, namely, that this court dismissed the appellant/applicant's appeal without considering the appellant's written submissions which were filed in court on December 15, 2021. No appeal has been preferred against the judgment delivered on February 17, 2022.

23. The appellant/applicant only discovered that his written submissions were not placed in the court file when the verdict was read. It is not disputed that, On October 7, 2021, both counsels, by consent, agreed to canvass the appeal by way of written submissions. Consequently, parties were ordered to file and serve their written requests within 60 days.

24. Complying with the court's directions, counsel for the appellant filed her written submissions on December 15, 2021. The court also directed that the appeal be. On December 16, 2021, counsel for the applicant confirmed to the court that he had filed the applicant's written submissions. This is clear from the court proceedings, though, at the time of preparation of the judgment, they were not in the court file nor evidence of filing of the same.

25. On December 16, 2021, the court observed that he had not filed his written submissions, the respondent and his counsel did not attend court, and the court observed that he had not filed his written requests. Consequently, the court ordered the respondent had a window of 14 days to file and serve his written submissions.

26. This court delivered its judgment on December 17, 2021. In its decision, the court stated that none of the parties filed their submissions on the appeal as ordered on October 7, 2021. This was even though the applicant had filed his submissions on December 15, 2021.

27. The applicant contends that the court is vested with the power to review its judgment, and the same is donated under section 80 of the Civil Procedure Act and order 45 rules 1, 2, and 3 of the Civil Procedure Rules, 2010. Reliance is placed on the case of Nyamogo & Nyamogo v Kogo (2001) EA 174, which was relied upon in the case of Jeremiah Chelanga (suing as the guardian Ad Litem of John Chelanga Chepkonga) v Board of Management Kamatony Primary School and 3 Others (2021). The case of John Chelanga supra held that failure to consider submissions on record is an error that appears in the fact of history.

28. On the other hand, in the case of Richard Francis Malelu v Odhiambo Asher & Another was cited in Nyamogo & Nyamogo advocates v Moses Kipkolum Kigo relied on by the respondent to oppose the instant appeal, the court held that mere error or wrong or an erroneous view of evidence or law is certainly no ground for a review. However, it may be a ground for appeal.

29. This court, guided by the case of Albert Yawa Kaptsenga V Kenya Revenue Authority, Nairobi ELRC No 713 of 2018, is agreeable to the view that, notwithstanding applicant submissions were not considered, this court considered the evidence of the appellant on record and also considered the law and facts in arriving at courts determination. Therefore, failure to consider the appellant's submissions does not prejudice the respondents since all facts and the law in the case were considered. There is, therefore, no valid reason for this court to consider a review order as sought.

30. Thus, the court finds no merit in the application and makes the following orders ;1. The application is dismissed with no orders regarding costs.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 19TH DAY OF OCTOBER, 2022. ………………………CHARLES KARIUKIJUDGE