REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 433 OF 2018

IN THE MATTER OF ARTICLE 50(1), 162, 169 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE LANDLORD AND TENANT

(SHOP, HOTEL AND CATERING ESTABLISHMENTS) ACT CAP 301

AND

IN THE MATTER OF THE MAGISTRATE’S COURTS ACT, 2015

AND

IN THE MATTER OF THE BUSINESS PREMISES RENT TRIBUNAL (BPRT) CASE NO. 95 OF 2015

BETWEEN

SHADE MANUFACTURERS & HOTEL LTD.........................APPELLANT/APPLICANT

VERSUS

1. SERAH MWERU MUTUU                                                                                                      

2. GRACE GACIKU                                                                                                                     

3. VIRGINIA WANJIRU                                                                                                              

4. LOUIS WAITHERA.....................................................................................RESPONDENTS

RULING

1. Before me are two applications one by the Respondents dated 1^st October 2021 seeking the following orders:-

a) That the Certificate of Costs dated 22/1/2020 be adopted as a judgment of the Court.

b) That costs of this application be provided for.

2. The second application is by the Petitioner dated 21^st December 2021 and seeks the following reliefs:-

a) That the Honourable Court be pleased to review and set aside/vary its Ruling delivered on 30^th day of September 2021.

b) That costs be borne by the Respondents.

3. On 3/3/2022 the two applications were directed to be heard and determined together. In my considered opinion if the application for review succeeds the application for certificate of costs to be adopted as judgment of the Court falls and as such I shall deal with the application for review first.

PETITIONER’S APPLICATION FOR REVIEW

4. The Petitioner’s application dated 21^st December 2021 seek an order for a review and setting aside or varying this Courts ruling delivered on 30^th September 2021 with costs. The application is premised on grounds on the face of the application and supported by affidavit of Lawrence Olgoro Nyangito sworn on 20^th December 2021.

5. The grounds in support of the application are inter-alia; that the Court made a ruling in favour of the Respondents on account of mistake and error on the face of record; that the  Court when delivering the ruling failed to take into account that the Respondents had not presented any evidence before the Honourable Court to controvert the dispute in any manner on the Applicant’s reference Notice of Motion dated 31^st January 2020, that in the ruling delivered on 30^th September 2021 the Honourable Court proceeded to dismiss the Applicant’s Reference Chamber Summons dated 31.1.2020 and allowed the Respondents to file a Notice of Motion to have the Certificate of Costs issued earlier by the Taxing Master adopted as a Judgment of the Honourable Court and in granting the ruling, failed to consider that the Respondents had not filed any concrete evidence before the Court to contest the Chamber Summons Reference Application filed by the Petitioner/Applicant.

6. The application is supported by Petitioner’s Counsel Affidavit dated 20^th December 2021 which reiterates the contents of the application and states the Petitioner was dissatisfied with the Taxing Masters award of the sum of Kshs.644,100/= towards  party and party Bill of Costs and filed application to which the Respondents filed a Replying Affidavit, which according to the Petitioner did not controvert or objected to the Reference Application dated 31.1.2020. The Petitioner therefore urges in the circumstances, the Court should have proceeded to allow the Petitioner/Applicant’s reference but instead proceeded to dismiss the same.

7. The Applicant further contends that had the Court looked at the evidence adduced by the Respondents through the Replying Affidavit dated 27^th February 2020 the outcome should have been different and would have allowed the Applicants application.

RESPONDENTS’ RESPONSE

8. The Respondents are opposed to the Petitioner’s application and rely on Replying Affidavit sworn by Rosemary Wangari Chege sworn on 7^th February 2022.

9. It is Respondents case that the Petitioner has not exhibited the ruling in question and the Respondents’ as such cannot make up from the documents before the Court filed by the Petitioner/Applicant, as to what the Applicant purports to be aggrieved of in the alleged ruling.

10. The Respondent aver that as regards ground (iv) of the Application it is self-defeatist read with paragraph 6 of the Applicant’s supporting Affidavit which exhibits the Respondents response by way of a Replying Affidavit, to oppose the application, that was before the Court. The Respondents urges in view of the admission of there being a Replying Affidavit in opposition; it is not possible for this Court to review its own decision for if the applicant was aggrieved by the ruling, its recourse lie in an appeal which the Petitioner has not filed.

11. The Respondent further contended that this Court cannot therefore sit on an appeal in its own decision. It is further urged that the present application raises no sufficient grounds to warrant a review. Additionally it is contended that the application do not meet the threshold for granting orders of review.  The Respondents terms the application as frivolous and an abuse of the court process going by the various applications filed in this matter. The Respondents urge further the application is only intended to delay disposal of the matter and pray that the same be dismissed.

RESPONDENTS APPLICATION

12. The Respondents through a Notice of Motion dated 1^st October 2021 seeks an order that the certificate of Costs dated 22/1/2020 be adopted as a judgment of this Court. The application is premised on grounds on face of the application inter alia; that the Court had issued an order dated 28^th June 2021 marking the Petition discontinued with costs to the Respondents, that costs for the Respondents has been taxed and a certificate of costs dated 22/1/2020 has been issued; and that by a ruling delivered on 30/9/2021, the Court directed the Respondents to apply for adoption of certificate of costs as a judgment of the Court.

13. The application is further supported by supporting affidavit of Rosemary Wangari Chege sworn on 1^st October 2021, which reiterates the grounds on the face of the application and annexes annextures “RWC 1” being an order dated 11^th June 2019 marking the Petition as discontinued with costs to the Respondents and annexture “RWC 2” being Certificate of Taxation dated 22^nd January 2020.

PETITIONER’S RESPONSE

14. The Petitioner is opposed to the Respondents application dated 1^st October 2021 and in doing so field a Replying Affidavit sworn by Lawrence Olgoro Nyangito on 2^nd March 2022.

15. The Petitioner contention is that this Honourable Court is incapable of granting the orders sought on the grounds, that pursuant to earlier reference application filed on 31^st January 2020 by the Petitioner objecting the manner in which the Bill of Costs was taxed on 4^th December 2019 by the Taxing Master and urging that the same was never contested, that the Respondent filed a Replying Affidavit dated 27^th February 2020, and that pursuant to the Replying Affidavit dated 27^th February 2020 and filed in Court, the Respondents did not object, discredit or attack the Reference Application in any manner as clearly demonstrated in paras 1 – 7 (Annexed hereto and marked “LON 1” is a copy of the said Replying Affidavit dated 27^th February 2020).

16. The Petitioner therefore urge that it is apparent that the said Reference Application was not challenged or contested. It is therefore according to the Petitioner that the Court made an error or omission by failure to observe so and the Reference Application ought to have been allowed.

ANALYSIS AND DETERMINATION

17. I have carefully considered the two applications before me, responses as well as Counsel oral submissions and from the pleadings and submissions; I find that the following issues arise for consideration:-

a) Whether the Petitioner has met the threshold to warrant a review.

b) Whether the Respondents application can be granted.

A. WHETHER THE PETITIONER HAS MET THE THRESHOLD TO WARRANT A REVIEW.

18. The Petitioner/Applicant through its application dated 20^th December 2021 seeks review and /or setting aside or varying this Courts Ruling delivered on 30^th September 2021. The Ruling was delivered after parties had filed their respective pleadings and submissions. The Court decided as follows:-

a) Application dated 31^st January 2020 seeking to set aside or vacate Ruling delivered on 4^th December 2019 by the Taxing Master and re-taxation by different Taxing master or in alternative this Court do tax the party to party Bill of Costs is without merits and is dismissed.

b) Application dated 11^th March 2020 is partially allowed on conditions and to the extent that the Respondents do file and serve formal application to have certificate of costs adopted as judgment of this Court and upon granting the same the stay would lapse and upon which the Respondents will be able to drawn decree from the said Judgment and execute the same.

19. Order 45 of the Civil Procedure Rules sets out what a party seeking review is required to demonstrate. Order 45(1) (a) (b) provides as follows:-

“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.”

20. In the instant application the Applicant has not demonstrated discovery of new and important matter or evidence which, after due exercise of diligence, was not within its knowledge or could not have provided at the time when the decree was passed or the order was made or on account of some mistake or error apparent on the face of the record or any other sufficient reason to warrant a review of the decree or order.

21. The Petitioner/Applicant seek review in this matter on account of mistake and/or error on the face of the record, in that the Court failed to take into account that the Respondents had not presented any evidence before the Court to controvert or dispute the Applicant’s Reference Notice of Motion dated 31.1.2020. It is however noted in the Supportive Affidavit by Lawrence Olgoro Nyangito dated 20^th December 2021 under paragraph 6 he depones thus:-

“That the Respondents in response to the Applicant’s Chamber Summons Application dated 31.1.2020 filed a Replying Affidavit dated 27^th February 2020. (Annexed hereto and marked “LON 1” is a copy of the Replying Affidavit filed by the Respondent’s).”

22. The Respondents in response through the Replying Affidavit of Rosemary Wangari Chege sworn on 7^th January 2022 under paragraph 4 and 5 in response states;

“4. That of ground (iv) of the application it is self-defeating read with paragraph 6 of the applicant’s supporting affidavit which exhibits the Respondent’s response by way of replying affidavit to oppose the application that was before the Court.

5.That in view of the paragraph 4 above, the Court cannot review its own decision and if the applicant was aggrieved of the ruling its recourse lay in an appeal which was not filed and this Court cannot sit on an appeal in its own decision. Nothing before the Court warrants a review and the application does not meet the threshold for.”

23. In essence I understand the Petitioner contention is that this Court was in error when it proceeded to reject the Applicants application which according to the Applicant was unopposed. This is contrary to the Court’s record and Ruling as there was a Replying Affidavit opposing the application. Secondly it does not follow where there is no Replying Affidavit in a matter or defence the same should automatically be granted or be allowed. Section 107 of the Evidence Act provides that whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. This is why in a matter where defence has not been filed, formal proof is necessary. It is not automatic that a judgment in favour of a litigant should always issue where there is no defence or response.

24. In the instant matter there was a Replying Affidavit which this Court considered and came to its conclusion. The fact that the Court did not give a decision which the Petitioner’s/Applicants were anticipating is not an error or mistake in law or on fact to justify granting a review.

25. I have now to consider what amounts to “some mistake or error apparent on the face of the record”. The mistake or error in this situation should be such, which is very obvious and visible itself on the face of it, it should not be something that cannot be obvious. Failure to delivered ruling as anticipated by a litigant as in this case by the Applicant/Petitioner, in my view cannot be said to be a mistake or an error apparent on the face of record nor can it be a ground for seeking a review. In addition, in my view, what would in view of the parties amount to good grounds of Appeal cannot be a justification at any rate for parties to seek a review.  An aggrieved party who feels he has good grounds of Appeal should file an Appeal but not bother seeking a review on such grounds.

26. I now turn to consider whether a Court can review its decisions on the basis of an alleged error on law, which review call for challenging or deleting of final orders and findings in a Judgment. The Court of Appeal dealing with similar issue in the case of National Bank of Kenya Limited vs Ndungu Njau [1997] eKLR, the Court of Appeal held as follows:-

 “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.” (Emphasis mine)

27. Similarly in the case of Supreme Court No. 3 of 2014; Robert Tom Martins Kibisu v Republic [2018] eKLR the Court had this to say:-

“[49] Be that as it may, we are inclined to consider the application before us, more so the allegations therein, so as to clearly put everything into context. In that regard, while the application before the Court is framed as one seeking review for correction of errors apparent on the face of the record, the mischief is in the details. An application cannot be said to be for correction of errors when it is anchored and replicate with allegation of discontentment with the Court’s finding and/or appreciation of legal principles and their interpretation thereof. Such dissatisfaction is normally a ground for appeal.”

[50] Further, in an application for correction of errors, the focal point is usually the judgment of the Court/tribunal which is sought to be corrected. An applicant is thus duty bound to specifically point at the particular page/paragraph and/or portion of the judgment where he opines that the alleged error is situated. Suffice it to say, an error cannot be apparent on the face of the judgment when that error requires evidence to be adduced so as to enable the Court to discern it. Needless to say, we fail to fathom why an application for correction of errors could even draw such a huge record like the one before us in this application. The precision of such an application and its clear nature is what clothes the Court with the jurisdiction to even move suo motto: for what is erroneous will occasionally be glaringly obvious.

[51] We thus reiterate that an application for review of a Court’s judgment cannot call for the changing and/or altering of the Court’s final orders and findings drawn from the reasoning in the entire judgment…”(Emphasis mine)

28. Considering the grounds in support of Petitioners/Applicant’s application for review, I find that the application does not qualify for the grant of review on any of the grounds set out under Order 45 of the Civil Procedure Rules.

29. Upon consideration of the Ruling dated 30^th September 2021, the application by the Petitioner and response. I am satisfied that there was response by the Respondents, which this Court considered as it considered Petitioner’s / Applicant’s Reference, and from my findings I find that the Petitioner/Applicant has failed to demonstrate any mistake or error apparent on the face of the record and I found that no error was proved in the whole ruling specifically. The Petitioner/Applicant has contradicted itself in its application in contending that the Respondents had not presented any evidence before the Court to controvert or dispute the Reference Notice of Motion dated 31/1/2021 when the Counsel in his supporting affidavit sworn on 20^th December 2021 under paragraph 6 admitted the Respondents had filed response to the Applicant’s application dated 31/1/2020 through a Replying Affidavit dated 27^th February 2020. It therefore follows that the application was opposed and the Court in reaching its decisions considered all the materials availed to the Court. I find no basis for granting review and I proceed to term the application as frivolous and vexatious and an abuse of the Court process.

30. It should be noted that the power of review is only available when there is an error apparent on the face of the record. The Court cannot correct an error in law as the Court cannot sit on appeal on its decision. This is why the review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence on how the judge applied or interpreted the law. In doing so the Court is not allowed to exercise of Appellate jurisdiction in an application or review. The Applicant seeking review is in my view duty bound to specifically point at the particular paragraph and page and/or portion of the ruling or judgment where he opines that the alleged error is situated. A general allegation of an existence of error cannot in any view suffice. The Applicant has failed to meet this test.

B. WHETHER THE RESPONDENTS APPLICATION CAN BE GRANTED.

31. The Respondents pray for the certificate of costs dated 22/1/2020 be adopted as a judgment of the Court. It is based on the grounds that this Court on 28/6/2019 marked the Petition discontinued with costs to the Respondents, which costs were taxed on 22/1/2020 and by this Courts ruling delivered on 30/9/2021 directing the Respondents to apply for adoption of the Certificate of Costs as a Judgment of the Court.

32. The Petitioner/Applicant do not dispute the grounds in support of the application but opposes granting of the application on grounds similar to those of seeking review through a Replying Affidavit by Lawrence Olgoro Nyangito sworn on 2^nd March 2022, I have considered the same grounds herein above under issue (A) in respect of the Petitioner/Applicant’s application and found no merits on the same and as such, I need not reconsider the same as I will come to the same conclusion, and therefore find that the grounds have no merits. I find the Respondents application meritorious.

33. In view of the foregoing I find no merits in the Petitioner’s/Applicant’s application seeking review dated 20^th December 2021. I dismiss the same with costs.

34. As regards the Respondents application dated 1^st October 2021, I find the same to be meritorious. I proceed to grant the following orders:-

a) The certificate of costs dated 22/1/2020 be and is HEREBY adopted as judgment of the Court.

b) Costs is awarded to the Respondents/Applicants.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10^TH DAY OF MARCH, 2022.

.........................

J. A. MAKAU

JUDGE