Margaret Gachoki Thongori v Peter Njenga Karienye [2022] KEELC 639 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CIVIL APPEAL NO. 365 OF 2017

MARGARET GACHOKI THONGORI.......................APPELLANT

=VERSUS=

PETER NJENGA KARIENYE.................................RESPONDENT

RULING

1. This court [Angote J] rendered a judgment in this appeal on 24/4/2020. The court rendered itself thus:

“25. Exhibits in the lower court must be included in the Record of Appeal. In the absence of exhibits in the Record of Appeal, the appeal before me is incompetent and must fail on that ground.

26. In the circumstances, the appellant’s appeal is struck out with costs.”

2. Sixteen months later, specifically on 6/9/2021, the appellant brought a notice of motion dated 23/8/2021 seeking a review of the Judgment. The said application was supported by the appellant’s affidavit sworn on 23/8/2021. The application is the subject of this ruling.

3. The ground advanced by the appellant in seeking to set aside the judgment of the court is that her previous advocate erroneously failed to include certain exhibits in the record of appeal. She contends that she was not aware of the mistake by her advocate. She adds that she stands to suffer irreparable loss if the Judgment is not reviewed. She further states that she was not aware that the appeal was coming up for judgment and only came to learn about the judgment after delivery.

4. The application was canvassed through brief written submissions dated 14/3/2022 filed by the firm of Kimani Charagu & Co Advocates.Counsel submitted that the court relied on the provisions of Order 42 rule 13(4)of the Civil Procedure Rules which provides that before allowing the appeal to go for hearing the judge shall be satisfied that certain specified documents are on record. Counsel argued that the judge having allowed the appeal to go for hearing, he should not have turned around and placed the blame on the appellant. Counsel contended that the judge should not have admitted the appeal for hearing, and that having allowed the appeal to go to hearing, he was equally to blame. Counsel argued that the best that the judge should have done was to order that a supplementary record of appeal be filed.

5. Counsel added that the trial court file which was before the Judge contained a list of exhibits together with the exhibits themselves and formed part of the record. Counsel contended that when the Judge found that the record of appeal did not contain certain exhibits, he ought to have ordered that the appeal was not sufficiently ready for hearing and directed the appellant to “comply”.

6. Counsel further submitted that because the appellant was represented by an advocate, the omission to file a complete record of appeal was that of the advocate and should not be visited on the appellant. Counsel added that the court is vested with discretion in an application for review, contending that the appellant had demonstrated sufficient ground why the judgment should be reviewed. In conclusion, counsel submitted that by striking out the appeal, the Judge did not consider the appeal on its merits, hence the need to review the Judgment and let the appeal be heard on its merits.

7. I have considered the application together with the submissions tendered. The single question falling for determination in this ruling is whether the application has satisfied the criteria upon which this court exercises jurisdiction to review its judgments.

8. The substantive legal framework on the review jurisdiction of this court is contained in Section 80 of the Civil Procedure Act which provides as follows:

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 form which no appeal is allowed by this Act,

may apply for a review of judgment to the court which passed the decree of made the order, and the court may make such order thereon as it thinks fit.”

9. The criteria which guides the exercise of the review jurisdiction of this court is contained in Order 45 rule 1 of the Civil Procedure Rules which provides as follows:

“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.”

10. The ground I understand the applicant to be advancing in this application is that the Judge erred by firstly admitting the appeal for hearing and subsequently rendering a judgment in which he struck out the appeal. She contends that having come to the conclusion that the record of appeal was incomplete, the learned Judge should not have struck out the appeal; he should instead have directed the appellant to file a supplementary or complete record of appeal. The applicant is basically saying that the learned Judge misapprehended the law and the proper procedure and therefore his judgment should be reviewed by a judge of equal status.

11. Is this a ground for review by a Judge of the same status? My answer to the above question is in the negative. An error such as the one advanced by the applicant is a ground for appeal to the Court of Appeal. It is not a ground for review by a judge or court of the same rank. This court has no jurisdiction to review the judgment of Angote J on the ground advanced by the appellant. The court vested with that jurisdiction is the Court of Appeal.

12. For the above reasons, my finding on the single question in the application under consideration is that the application dated 23/8/2021 does not satisfy the criteria for review of a judgment by a Judge or court of the same status. Consequently, the application dated 23/8/2021 is dismissed with costs for lack of merit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 24TH DAY OF MARCH 2022

B M EBOSO

JUDGE

Court Assistant: Lucy Muthoni