Ngoge t/a OP Ngoge & Associates v Onyango & 4 others; Attorney General & another (Interested Parties) [2019] KESC 8 (KLR)

Ngoge t/a OP Ngoge & Associates v Onyango & 4 others; Attorney General & another (Interested Parties) (Petition 18 of 2015) [2019] KESC 8 (KLR) (29 November 2019) (Ruling)

Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Josephine Akoth Onyango & 5 others; Attorney General & another (Interested Parties) [2019] eKLR

Neutral citation: [2019] KESC 8 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 18 of 2015

DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, SC Wanjala & I Lenaola, SCJJ

November 29, 2019

Between

Peter Odiwuor Ngoge T/A O.P. Ngoge & Associates

Appellant

and

Josephine Akoth Onyango

1st Respondent

Simon Otieno Onyango

2nd Respondent

The Director of Public Prosecutions

3rd Respondent

The Director of Criminal Investigations Department

4th Respondent

Kenya Commercial bank Ltd

5th Respondent

and

The Hon Attorney General

Interested Party

Commission on Human Rights

Interested Party

(Being an Appeal arising from the Judgment of the Court of Appeal delivered at Nairobi on the 2nd October 2015 in Civil Appeal No. 51 of 2014 Civil Appeal 51 of 2014 )

Ruling

1Upon perusing the Notice of Motion application dated 22nd October 2018 and filed on 23rd October 2019 which is brought under the provisions of Articles 1(5)(6), 10, 19, 20, 21, 22, 27, 28, 29, 40, 50 and 258 of the Constitution as well as Section 14(5) of the Supreme Court Act seeks Orders for review of the Judgment and order of this Court dated 2nd October 2015 and;

2. Upon considering the Supporting Affidavit of Peter O. Ngoge Advocate, sworn on 22nd October 2015 and a further Affidavit sworn on 3rd May 2019 as well as the 6th Respondent’s Grounds of Opposition dated 29th March 2019 and filed on the same date and;

3. Upon reading written submissions by the Applicant dated and filed on 11th June 2019 together with submissions in response to the 1st and 2nd Respondents’ submissions wherein the Applicant has submitted afresh on matters that have been heard and determined by the High Court, Court of Appeal and this Court, faulting all of them for allegedly misconstruing and misunderstanding the case as argued before them; and adding that he has filed a complaint against the Republic of Kenya at the African Commission on Human and Peoples Rights on matters touching on those decisions and;

4. Noting that the Applicant also submits that a review of this Court’s Judgment is necessary because he is now at the risk of execution of the 1st and 2nd Respondents’ Bill of Costs taxed at Kshs.5,000,000 or thereabouts which action will be highly prejudicial to him during the pendency of the proceedings before the African Commission on Human and Peoples Rights and;

5. Upon reading the 1st and 2nd Respondent’s submissions dated and filed on 26th July 2019, where it was submitted that once this Court delivered its Judgment on the appeal on which the present Application is predicated, it became functus officio and has no jurisdiction to stay or review the said Judgment and further, that the African Court on Human and Peoples Rights has no superiority over this Court neither can it supervise it and therefore its proceedings are of no consequence to the present Application and;

6. Upon reading the 6th Respondent’s submissions wherein it contends that this Court struck out the Applicant’s appeal on the ground that the Appeal did not meet the threshold under Article 163(4)(a) of the Constitution which position still obtains and that therefore a review in respect of the same matter is untenable and;

7. Furthermore, noting that the 5th Respondent contends that the Application is misguided because the Applicant is seeking a review of the Order of taxation of the 1st and 2nd Respondents’ Bill of Costs as opposed to the substantive Judgment and that in any event, the proceedings before the African Commission on Human and Peoples Rights are strange to it and contravene the concept of territorial sovereignty;

8. We note that the law as regards review of Judgments of this Court was settled on a Ruling delivered on 24th February in Petition No.6 of 2014 Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others e[KLR] wherein we rendered ourselves as follows:Taking into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:(i)the Judgment, Ruling, or Order, is obtained, by fraud or deceit;(ii)the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;(iii)the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;(iv)the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of , a deliberately concealed statutory provision.These principles are no doubt informed by various judicial authorities, in other jurisdictions, such as the ones we have cited from Nigeria, United Kingdom, India and South Africa”. [Emphasis added]

9. Upon applying the above principles to the present case, it is quite obvious to us that none of the exceptional circumstances set out above are properly applicable to this case. It can in fact be seen that the Applicant only moved this Court for a review of its Judgment, 3 years after delivery of the said Judgment and only because he was threatened with execution by the 1st and 2nd Respondents. That action is not a ground for seeking a review of the Judgment.

10. Furthermore, whereas the African Commission on Human and Peoples Rights is indeed seized of a complaint against the Republic of Kenya by the Applicant, that fact alone is not sufficient to move this Court to review its Judgment.

11. And in the circumstances, the Application, Affidavit in support, verbose as they are, and the largely irrelevant submissions by the Applicant, have not swayed our collective minds towards a review of our Judgment as prayed.

12. In the circumstances, our final Orders are that:(a)The Application dated 22nd October 2018 is hereby dismissed.(b)As costs follow the event, the Applicant shall bear the costs thereof.

13. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF NOVEMBER, 2019. .......................D. K. MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURTT.......................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT.......................J. B. OJWANGJUSTICE OF THE SUPREME COURT.......................S. C. WANJALAJUSTICE OF THE SUPREME COURT.......................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA