Kenya Power and Lighting Company Limited v Abednego Shikuyu Inea (Suing as a Dependent and/or Personal Representative of the Estate of Isaac Amboba Shikhuyu) & another [2022] KEHC 10853 (KLR)

Kenya Power and Lighting Company Limited v Abednego Shikuyu Inea (Suing as a Dependent and/or Personal Representative of the Estate of Isaac Amboba Shikhuyu) & another (Civil Appeal 15 of 2020) [2022] KEHC 10853 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10853 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 15 of 2020

WM Musyoka, J

June 10, 2022

Between

Kenya Power and Lighting Company Limited

Appellant

and

Abednego Shikuyu Inea (Suing as a Dependent and/or Personal Representative of the Estate of Isaac Amboba Shikhuyu)

1st Respondent

Andrew Gunyama

2nd Respondent

(From ruling and order of Hon. JN Maragia, Senior Resident Magistrate, in Kakamega CMCCC No. 191 of 2017, of 12th February 2020)

Ruling

1. On November 26, 2021 I delivered a judgment in which I made several orders.

2. The appellant has now brought an application dated December 14, 2021, seeking review of the said judgment, on grounds that it had filed written submissions, which the court did not consider.

3. Review of a judgment or decree or order is founded on error on the face of the record or discovery of new material or other sufficient reason. The affidavit drawn in support of the application has not sought to demonstrate error on the face of the record or discovery of new material or other sufficient reason. The applicant argues that it had filed is written submissions on May 6, 2021. The said written submissions were not in the record when I prepared the judgment. It cannot, therefore, be said that there was an error on the face of the record or discovery of new evidential material or even existence of other sufficient reason.

4. The directions for filing of written submissions were given on February 2, 2021. Written submissions were to be filed within 30 days. The Advocate for the applicant was in court. Mention was fixed for March 30, 2021 to receive the written submissions, or to confirm their filing. The court did not sit on March 30, 2021, and a fresh date was given for June 15, 2021. At the mention on June 15, 2021 the Advocate for the applicant did not attend court, and the matter was allocated a date for judgment, October 15, 2021, and the same was not delivered until November 26, 2021. The Advocate for the applicant did not file its written submissions within the 30 days given on February 2, 2021. When the matter came up for mention in June 2021, to confirm filing of written submissions, the applicant did not attend court to ensure that its written submissions had been placed on record. It was its duty to ensure that after filing its written submissions at the registry, the same were placed in the court file. As a court, I could only work with what was on record. The applicant’s written submissions were not on record.

5. In the judgment of November 26, 2021, I considered all the issues that were raised in the memorandum of appeal. I did not dismiss the appeal for lack of written submissions. I have perused the written submissions that the applicant has placed before me, and I have not seen any new material, upon which I feel compelled to revisit the said judgment, for the purpose of reviewing it.

6. Overall, I do not find any merit in the motion, dated December 14, 2021. The same is for dismissal. As it is not opposed, I will make no orders on costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022. WM MUSYOKAJUDGEErick Zalo, Court AssistantMs. Barasa, instructed by Peter M. Karanja, Advocate for the appellant.Ms. Eroba, instructed by Nandwa & Company, Advocates for the 1st respondent.Ms. Aligula, instructed by Akwala & Company, Advocates for the 2nd respondent.