REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC NO. 340 OF 2017

(FORMERLY NRB ELC NO. 290 OF 2014)

TERESIA NJERI MWANGI....................................................1^ST PLAINTIFF/RESPONDENT

FRANCIS MAINA NDUNGU.................................................2^ND PLAINTIFF/RESPONDENT

VERSUS

ROSELINE KAMUNYU........................................................1^ST DEFENDANT/APPPLICANT

ENINAH NJOKI KARIUKI....................................................2^ND DEFENDANT/APPLICANT

PHYLIS NJERI KARIUKI.....................................................3^RD DEFENDANT/APPLICANT

RULING

By a Notice of Motion Application dated   23^rd February 2021 the Defendants / Applicants sought for the following orders;

1. That this Honorable Court be pleased to review and correct  its judgment  and Decree issued  on the 12^th  September 2019  to the effect that the suit property is Title No. Ruiru West Block 1/768 and not Ruiru  Kiu Block 1/768, instead thereof  indicate that the same is owned  by the 3^rd Defendant  Phylis Njoki  Kariuki .

2. That the  cost of this Application be provided for.

The Application is premised on the grounds that the Defendants/Applicants case and evidence was that the subject property  Tile No. Ruiru West  Block 1/768 is owned  by the  3^rd Defendant/Applicant  Phylis Njoki Kariuki . That the Court in its Judgment found for the Defendants/ Applicants and  final orders of the Court were to the effect that  a Declaration is issued   that the Defendants / Applicants  are lawful proprietors of the  suit property  Title No.Ruiru Kiu Block 1/768 . That the  said Declaration is incorrect and mistaken for reason that the  evidence led and the documents produced  showed that the  suit property  in the matter was Ruiru West Block 1/768,  owned solely by Phylis Njoki Kariuki . That failure to indicate Phylis Njoki Kariuki as the owner  of the suit property is mistake  apparent on the face of the record  and which can be rectified on review. That the issue raised herein are matters of record which the Defendants/ Applicants Advocate is competent  to present and depone on . That the said mistake has prejudiced the 3^rd Defendant/ Applicant who is unable to effect the Decree in the matter  and procure title documents  for the reason that the Decree does not expressly provide that she is the owner  of the suit property .

 In her Supporting Phylis Njeri Kariuki averred that the final  orders of the Court were to the effect that  a Declaration  is issued that  the Defendants/ Applicants  are lawful proprietors  of the suit property Title No. Ruiru/Kiu Block 1/768,  instead of Ruiru  West Block 1/768. That the mistake in the description by omission of the word West  and instead  thereby use  of the word KIU  is purely inadvertent  and does not affect of findings of the Court in the matter. That the Court  has the jurisdictional competence to correct errors  and mistakes apparent  on the face of the record and which appear  in a final Judgment. Further that the  mistake apparent on the  face of the record  has frustrated and prejudiced  the giving effect to the  said final decree  in the matter and she is unable to  procure title documents  from the  lands office  in Ruiru, despite several follow ups and it is only fair that the orders sought are granted.

 The Application is opposed  and the Plaintiffs/ Respondents filed a Replying Affidavit  sworn by  Francis Maina  on  9^th April, 2021 and filed on 25^th May, 2021.He averred that  it is clearly indicated in the Judgment and in his pleadings  that he brought a suit  against the Defendants / Applicants  for  suit property  Number  Ruiru West Block  1/768 . That it is clear  from the Defendants/ Applicants  pleadings  and more particularly their Counter Claim  that they sought Judgment against him  and his Co Plaintiff  for a different property  being Ruiru  Kiu Block 1/768  and Ruiru Kiu Block  2/4546. That him and his Co  Plaintiff  have never owned  Ruiru Kiu Block  1/768,  which is a completely  different property  in terms of description  and location as was pleaded by the Applicants . That L.R Ruiru Kiu Block  2/4546, though  belonging to him was never  an issue before Court though  the Court ordered for cancellation of the said Title. That the Applicants having pleaded for L.R Ruiru Kiu Block  1/768  and asking for cancellation  of its title,  cannot  be heard to say  that the property is  L.R Ruiru West  Block 1/768,  which title he holds as parties are bound by their pleadings .  That was evident from the pleadings  and the Judgment,  there is no  mistake apparent  on the face of the Judgment  record nor  Decree  that is capable of being cured by the Application. Further that it is clear  in law and principles  that the evidence  that is led by a party  to a suit  of their  witnesses against  the pleaded issue do not  in any way help  the party providing  such evidence  and it is immaterial what  evidence   the Applicants  led if  it wasn’t in tandem  with pleadings.

 That the Application is an abuse of the Court process  and they have filed  an Appel against the Courts Judgment  and Decree. That the issues raised  in the instant Application  are issues appealed from  before the Court of Appeal. That the Appeal has progressed way too far and submissions  have been tendered and closed  and scheduled to be  highlighted. That there being an Appeal and the issue  sought to be reviewed  being not an error  on the face of record  as it goes to the root of the pleadings  and evidence tendered by the  Applicant, the  Application should be dismissed.

 The Application  was canvassed with by way of written submissions  which the Court has carefully read and considered. The Court has also read and considered the  Application, affidavits and the annextures thereto and the provisions of law and finds that the issue for determination is whether the  Defendants/ Applicants are entitled to the orders sought.

The Defendants/ Applicants have sought for the review of the Courts Judgment and  subsequent Decree issued  on the 12^th  September 2019  to the effect that the suit property is Title No. Ruiru West Block 1/768 and not Ruiru  Kiu Block 1/768, instead thereof  indicate that the same is owned  by the 3^rd Defendant  Phylis Njoki  Kariuki .  The crux of the matter is that the Plaintiffs/ Respondents had filed a suit against the  Defendants/ Respondents seeking  amongst other orders a permanent injunction.

 The Defendants/Respondents would thereafter  file a Counter Claim. After adducing evidence, the  Court delivered its Judgment  allowing the Defendant’s/ Applicants  Counter Claim and a Decree was issued to that effect. In delivering its Judgment the Court allowed the Counter Claim in its entirety. However, it  turns out that in seeking their prayers in the Counter Claim, the Defendants/ Applicants had sought to be registered as owners of L.R Ruiru Kiu Block 1/768 Instead of L.R Ruiru West Block 1/768, which words KIU  and WEST  were replaced and the said property belongs to a different person. Further in  their prayers the Defendants/ Applicants  had in their prayers sought for a Declaration that the  Defendants/ Applicants  to be registered as the owners  instead of the 3^rd Defendant/ Applicant  and they have thus been unable to  effect the orders as framed and hence they are seeking for a review.

 The powers of the Court to amend judgments, decrees or orders Clerical or arithmetical mistakes is to be found under the  provisions of  Section 99 and 100 of the  Civil Procedure  Act which provides that ;

99. Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.

100.The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.

 It is thus not in doubt that the provisions of Section  100 of the Civil Procedure Act grants the Court powers  to amend   any defect  or error in any proceedings  in a suit  for the purposes of determining the real question  or issue raised  by or depending on the proceeding.

Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provides as follows:-

Section 80. Review

“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 from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

[Order 45, rule 1.] Application for review of decree or order.

“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”

 The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd ….Vs…Ndungu Njau.

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”

Further in the case of Muyodi …Vs… Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:

“ In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”(emphasis mine)

In the case of Chandrakhant Joshibhai Patel …Vs…R [2004] TLR, 218 it had been held that an error stated to be apparent on the face of the record:

"...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions."

The Plaintiffs/Applicants in opposing the  Application have contended that  they had already filed an Appeal in the instant matter and that the Appeal has already  progressed to submissions stage in the Court of Appeal. The  Court has seen the annextures  by the Plaintiffs/ Applicants and indeed it is  true that there were directions that were granted by the Court  of Appeal that parties filed written submissions and a Mention on 26^th May 2021 had been given. It is not in doubt as per the  Memorandum of Appeal filed by the Plaintiffs/ Applicants that the issues sought to be reviewed by the  Defendants/ Applicants are issues  that are part of the Appeal filed by the  Plaintiff/ Applicant . The Court having perused the Memorandum of Appeal and there being no evidence to the contrary, it is thus clear that the Review seeks for the determination of issue that are before the Court of Appeal. These issues stem from the pleadings filed by the  Defendants/ Applicants and not  necessarily clerical error  by the Court .

While this Court would have been in a position to make a determination on whether sufficient reasons had been given for it to exercise its discretion and review the Judgment, it is unfortunate that at this juncture, the Court is not in a position to do the same as the matter is before the Court of Appeal and this Court has no jurisdiction to entertain issues that are before the Court of Appeal. See Order 45 (2) of  the Civil Procedure Rules  which provides;

(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.

Reviewing  the   Judgment at this juncture after an appeal  has been filed  on the same issues that  the Applicants sought to be reviewed will have the effect of altering the Judgment and affecting the issues before the Court of  Appeal, which would be prejudicial to the Appeal. This Court states so as it takes notice that the Review Proceedings were filed more than a year after the  Judgment was delivered. Though this would not  be an issue if the Court was to determine the Review, considering the circumstances,  the effect is that  the issues are already before an Appellate Court and that the same has progressed far too long. This Court finds and holds that though it is not the Defendants/ Applicants who have filed the Appeal, the Court is unable to grant the orders sought as the issues are before the Court of Appeal and the same issues ought to be raised before the said Court Consequently, the Court finds the Application  dated 23^rd February 2021, is not merited and the same is dismissed entirely with costs to the Plaintiffs/Respondents.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 8TH DAY OF OCTOBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Lucy