Marigat Group Ranch & 3 others v Michael Cherop [2015] KEELC 368 (KLR)

REPUBLIC OF KENYA

IN THE ENVRONMENT AND LAND COURT OF KENYA

AT ELDORET

E&L NO. 42 OF 2014

MARIGAT GROUP RANCH & 3 OTHERS.....................PLAINTIFF

VS

MICHAEL CHEROP................................................DEFENDANT

RULING

Joshua Kisenger, hereinafter referred to as the applicant prays for orders that this honourable court be pleased to review its own order dated 23/10/2014 with a view of Legitimizing the applicant as the only legal representative of Kimibi Kipkulei (deceased). And Including the last paragraph of the ruling as an order of the court for purposes of clarity and Vacating the order issued on 28th October, 2014.

The application is based on grounds that the order extracted from the ruling does not capture entire spirit contained in the ruling and that the respondents have interpreted and communicated to the general public that the applicant is completely gagged from commenting or having any say on the process and therefore,  given the bad blood between the two groups, the order may be abused hence clarity is needed to forestall such abuse. The applicant claims that the order can be interpreted to mean that he is not the administrator of the estate of Samuel Kipkulei Kimibei and that the respondents have announced that he would not move near the ground on the date of demarcation.

In his submissions Mr Kipkeneiargues that this application is properly brought under the the Civil Procedure Rules because the spirit of the ruling must be captured in the order.

In his submissions Mr Miteiargues that the application does not follow under the ambit of Oder 45 of the Civil Procedure Rules and that prayer one cannot be granted as it was not an issue before the court.

The application is brought under Order 45 of the Civil Procedure Rules 2010 which provides for review of decree or orders  in certain circumstances . I have considered the application and do find that the applicant is not challenging the ruling of the court but his concern is the contents of the extracted order.  He did not say that there is discovery of a new and important matter or evidence which after the exercise of due diligence was not with his knowledge or could not be produced by him at the time when the decree was passed on to order made.  Likewise the applicant does not say that there is a mistake or error apparent on the face of the record and therefore I am left with the question as to whether this application falls within “any sufficient reason?”as per the rule relied on.

The rule ofejusdem generis provides that when particular words pertaining to a class, category or genus are followed by general words, the general words are considered as limited to things of the same kind as those specified.  When there is a clear category followed by words that are not clear or appear superfluous such as“any sufficient reason” it would be a violation of the rule of construction to strike out and render unmeaning  words which were previously inserted for purposes of having some meaning . However the reason to be declared sufficient for purposes of this rule must be related to the first two category of reasons.

Mr Kipkeneihas given his reasons for review thus that the decree does not capture the spirit  of the ruling.  I find this to be far fetched as the spirit of a ruling is always embodied in the decision of the court.  The decree properly captures the decision of the court. The applicant appears to be concerned about how people will interpret the decree.  I do hold that this fear is uncalled for as the applicant's rights have not been violated as he was only stopped from interfering with the process.

This court  cannot order that the last paragraph of the ruling be included in the judgment because the said paragraph was an opinion and not a a decision capable of being extracted as as a command or order. Moreover I agree with the arguments of Mr Mitei that prayer 1 cannot be granted on review as it was not an issue before court.

The upshot of the above is that the application is dismissed with costs.

DATED AND DELIVERED AT ELDORET THIS 5TH DAY OF FEBRUARY 2015

JUSTICE OMBWAYO ANTONY

ENVIRONMENT AND LAND COURT AT ELDORET