Samuel Ndura Kanyara v Mary Njambi Kariuki [2017] KEHC 1898 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 144 “B” OF 1993

SAMUEL NDURA KANYARA..................................APPLICANT

VERSUS

MARY NJAMBI KARIUKI....................................RESPONDENT

RULING NO. 2

1. The applicant prays for review of the order and ruling of court dated 30th March 2017. He also prays for enlargement of time to “file and serve a memorandum and record of appeal”. The two prayers are pleaded in the notice of motion dated 10th April 2017.

2. The application is predicated on a deposition sworn by the applicant on even date. He has annexed the judgment of the lower court delivered on 30th November 1993 and the ensuing decree. The main grounds for review are as follows: That there is only one genuine appeal number 144 of 1993; and, that the present appeal, number 144 “B” of 1993, is a stranger. A receipt number 400506 for court filing fees of appeal number 144 of 1993 is annexed to the motion.

3. The applicant contends that appeal 144 of 1993 was admitted by Aganyanya J (as he then was) on 3rd February 1994. Directions for hearing of the appeal would seem to have been given by Gacheche J on 28th October 2009. However, the appellant did not proceed with the appeal due to what he terms as a “mix up” with two other files at the High Court: Civil Appeal 152 of 1994; and, Civil Appeal 144 “B” of 1993.

4. The applicant filed submissions on 19th September 2017. At paragraphs 5 he states as follows-

“This case (HCCA 144 of 1993) which has a memorandum of appeal is not among those which are said to have been concluded and therefore a [sic] need to re-examine or review this case is a priority for the sack [sic] of justice”

5. The applicant decries the award of costs issued in those two other matters without his knowledge; and, he now pleads with the court to call for the appeal file in HCCA 144 of 1993 for review.

6. The motion for review is contested. The respondent has filed a brief replying affidavit sworn on 19th July 2017. The respondent avers that this court ruled on 30th March 2017 that it had no jurisdiction to grant the prayers sought; and, that the present application has not met the threshold for review as defined by the Civil Procedure Rules. Reference was also made to a related ruling of the Court of Appeal in Civil Appeal 54 of 2015. I was implored to dismiss the motion with costs.

7. I have considered the pleadings, depositions and rival submissions. Under section 80 of the Civil Procedure Act; and, Order 45 of the Civil Procedure Rules 2010, the court has power to review its decision. The applicant must demonstrate that there is new and important matter or evidence which, after exercise of due diligence was not within his knowledge or could not be produced at the time; or, on account of some error or mistake apparent on the face of the record; or, for any other sufficient cause.

8. The application for review was filed on 10th April 2017, ten days after the impugned ruling. I am thus satisfied that the application was brought without delay. The applicant has tried to argue afresh the merits of the appeal. The arguments in the present motion arenot any different from the ones determined by the court on 30th March 2017. The applicant has not demonstrated that there is new and important matter or evidence; or, that there is some error or mistake apparent on the face of the record or the ruling of 30th March 2017. In a synopsis no sufficient cause has been shown for review of the ruling.

9. In the relevant passage of the impugned ruling, I delivered myself as follows-

“[6] Jurisdiction is everything. Without it, the court must lay down its tools. Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1. I find that I am not seized of jurisdiction to consider the application. On 7th October 2014, I heard a similar motion by the applicant for leave in HCCC 144 of 1993 and 144 “B” of 1993. For reasons on the record, I dismissed the motion. The applicant was aggrieved and filed Civil Appeal 54 of 2015 Samuel Kanyara v Mary Njambi Kariuki. The Court of Appeal (Musinga JA) delivered a ruling on 10th March 2016. The heading of the ruling is clear that it related to both HCCC 144 of 1993 and HCCC 144 “B” of 1993. The application was dismissed, for among other reasons, that there was unreasonable delay of 23 years since the impugned judgment; and, for failure to annex a draft memorandum of appeal.

[7] The applicant now purports to re-open the prayer of leave before the High Court. It is highly irregular; and, impermissible. The matter is clearly res judicata and lodged in the wrong forum. Having so found I need not interrogate the merits of the intended appeal. I lay down my tools….”

10. The upshot is that no sufficient cause has been shown for review of the above ruling. The applicant’s notice of motion dated 10th April 2017 is devoid of merit. It is dismissedwith costs.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORETthis 9th day of November 2017.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Applicant (in person).

Mr. Njuguna for the respondent instructed by Njuguna & Company Advocates.

Mr. J. Kemboi, Court Clerk.