Tagaya v Onyango & another [2023] KEELC 20751 (KLR)

Tagaya v Onyango & another (Environment and Land Appeal 5 of 2022) [2023] KEELC 20751 (KLR) (17 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20751 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment and Land Appeal 5 of 2022

GMA Ongondo, J

October 17, 2023

(FORMERLY MIGORI ELC APPEAL NO. E005 OF 2021)

Between

Patrick Ogol Tagaya

Appellant

and

Jennifer Aoko Onyango

1st Respondent

Land Registrar, Homabay

2nd Respondent

Ruling

1. This ruling is in regard to an application by way of a notice of motion dated 30th March 2023 and duly lodged in court on 13th April 2023 by the 1st defendant/applicant, Jennifer Aoko Onyango through Ameli Inyangu and Partners Advocates seeking the following orders;a.That this Honourable Court be pleased to review its judgement delivered on 31st January 2023. b.That the costs of this application be provided for.

2. The application is premised on grounds 1 to 3 set out on it’s face as well as the applicant’s supporting affidavit of thirteen paragraphs sworn on even date together with the annexed copy of this court’s judgment marked as “JAA 1” and a copy of the decree thereof. In a nutshell, the applicant’s lamentation is that there is an apparent error on the face of the record on a substantial point of law in respect of the judgment relating to computation of limitation period by court because she discovered error in the acreage of the suit land reference number Lambwe West B/2250 when she was issued with it’s title deed in the year 2018. That there is sufficient reason for review of the judgment and the application has been mounted without unreasonable delay.

3. By a replying affidavit of eleven paragraphs sworn on 9th June 2023 and copies of documents marked “MKD PT 1” annexed thereto, the appellant/respondent through the firm of N.E Mogusu and Associates Advocates, opposed the application, termed the same devoid of merit and that it should be dismissed with costs. He deposed in part that since the applicant averred at paragraph 3 of her supporting affidavit that the error is on a substantial point of law and fact namely the period of limitation, the same can only be corrected on appeal. That the application has been brought too late in the day without any explanation thereby.

4. Notably, the 2nd respondent failed to reply to the application.

5. On 14th June 2023, the court directed that the application be heard by written submissions pursuant to Order 51 Rule 16 of the Civil Procedure Rules, 2010 and Practice Direction number 32 of the Environment and Land Court Practice Directions, 2014.

6. Consequently, the applicant’s counsel filed submissions dated 20th June 2023. It was submitted that the applicant has not lodged an appeal against the decision of this court but has filed a notice of intention to appeal only. That this court disallowed the trial court’s award on the counter claim in favour of the applicant. That the cause of action in this case accrued from the year 2018 when the applicant was issued with title deed to the suit land and the counter claim was filed within time. Thus, counsel urged the court to correct the apparent error on record in computing the limitation period.

7. In the appellant/respondent’s submissions, reference is made to the case of Hosea Nyandika Mwoswogwe & 2 others-vs-County Government of Nyamira (2022) KLR that a review cannot be canvassed merely for a fresh hearing of arguments or correction of an erroneous view taken earlier as in the present case. That the alleged apparent error constituted facts which were within the knowledge of the applicant and during the initial determination herein. That the application has been mounted too late in the day hence it should be dismissed with costs.

8. The 2nd defendant did not file submissions in this application.

9. Having considered the entire application, the replying affidavit and the rival submissions, has the applicant satisfied the court that;a.There is an apparent error on record and sufficient cause for review of the judgment delivered on 31st January 2023 as envisioned under Order 45 Rule 1 (a) of the Civil Procedure Rules, 2010?b.She is entitled to the costs of the application?

10. It must be borne in mind that this application is generated under, inter alia, Order 45 Rule 1 (supra) regarding review of judgment alongside section 3A of the Civil Procedure Act Chapter 21 Laws of Kenya on inherent powers of the court to make orders for the ends of justice. Also, the court is guided by section 80 of the Civil Procedure Act Chapter 21 Laws of Kenya as regards review of judgment.

11. The applicant asserted that there is an apparent error in this court’s judgment as she discovered in 2018 that only 0. 4 hectares had been allocated to her as per the title deed over the suit land. That she has already obtained title deed in respect of one and half acres after the judgment of the magistrate’s court.

12. The respondent stated that the apparent error on the title as alleged by applicant was within her knowledge at the time of the judgment. It is crystal clear from the applicant’s statement of defence and counter claim dated 26th June 2019, the trial court’s judgment as well as this court’s judgment that the applicant had knowledge of the error.

13. It is trite that the applicant should not seek to introduce new evidence which was in any case was within the knowledge of that applicant and could have been produced at the initial trial thus, review sought does not apply; Simani-vs-Magotswe (1989) KLR 20.

14. Moreover, the Notice of appeal dated 24th February 2023 and filed on 28th February 2023, has been given herein. So, an appeal to the Court of Appeal is deemed duly lodged under Order 42 Rule 6 (4) of the Civil Procedure Rules, 2010.

15. Clearly, it would not be right for this matter to be heard simultaneously by this court and the Court of Appeal; see also Judicial Commission of Inquiry into Golden Affair & 3 others-vs-Job Kilach (2003) eKLR.

16. On the whole, discovery of an error on the title of the suit land were not new matters and were dealt with by trial court and this court. There was no due diligence on the part of the applicant. Further, I find no sufficient reason for review of this court’ judgment as sought in the application.

17. To this end, it is the finding of this court that the application has not attained the threshold for review of this court’s judgment rendered on 31st January 2023. The same is devoid of merit.

18. Accordingly, the application is hereby dismissed.

19. In the obtaining circumstances, costs of this application to abide the outcome of appeal at the Court of Appeal.

20. It is so ordered.

DATED AND DELIVERED AT HOMA BAY THIS 17TH DAY OF OCTOBER, 2023G. M. A ONG’ONDOJUDGEPRESENT;1. Mr Inyangu learned counsel for the 1st defendant/applicant2. Applicant/1st defendant3. Appellant/respondent4. Terence and Fiona, court assistants