(1)On March 23, 2022, this Court delivered a ruling striking out the Notice of Motion dated November 9, 2021. By that application, Fred Waswala(the Applicant) had sought the main order that there be a stay of further proceedings and execution of the decree in Bungoma Chief Magistrate’s Court Civil CaseNo 200 of 2015 pending the hearing and determination of Bungoma High Court Civil AppealNo 2 of 2021 (now Bungoma ELC Appeal No 4 of 2021). In striking out that application, this Court found that it was sub – judice and an abuse of the process of the Court since a similar application was pending determination in the Subordinate Court.
I now have for my determination the Applicant’s Notice of Motion dated March 28, 2022 and premised under the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 (b) of the Civil Procedure Rules. The Applicant seeks the following orders: -1.Spent2.Spent3.That the Honourable Court be pleased to review and/or set aside it’s ruling and orders issued on March 23, 2022and in it’s place, the Honourable Court do order stay of proceedings and execution of the Decree inBungoma Chief Magistrate’s Court Civil Suit No 200 of 2015 pending the hearing and determination of Bungoma ELC Appeal No 4 of 2021.4.That costs of this application be provided for.
The application is predicated on the grounds set out therein and supported by the Applicant’s affidavit also dated 28th March 2022.
The gravamen of the application is that when this Court delivered its ruling on March 23, 2022 dismissing his application dated November 9, 2021, it did not consider his supplementary affidavit which had been duly filed and which showed that he had infact withdrawn a similar application filed in the Subordinate Court. That the mistake of not placing the said supplementary affidavit in the Court file was not his. Therefore, there is an apparent mistake on the face of the Court record which should allow the Court to rectify the ruling by an order of review.
Annexed to the supporting affidavit is the Applicant’s supplementary affidavit dated 6th December 2021.
The application is opposed and Everlyne Nasimiyu Ejilo(the 1st Respondent) filed a replying affidavit dated 30th April 2022 in which she deponed, inter alia, that the application is frivolous, vexatious and an abuse of the Court process and should be dismissed for failure to meet the threshold of Order 25 Rule 2(2) and Order 45 of the Civil Procedure Rules as well as Section 80 of the Civil Procedure Act.
That the application dated November 9, 2021 and which was struck out vide my ruling dated 23rd March 2022 was infact filed when a similar application was pending in the Subordinate Court. That the Applicant has not annexed to his application any order showing that the application filed in the Subordinate Court had been withdrawn. That the Notice of Withdrawal dated November 18, 2021 was never served upon the Respondents’ Counsel and neither is there a receipt to confirm the authenticity of the same. This application should therefore be dismissed with costs.
The application has been canvassed by way of written submissions. These were filed by both Mr Wamalwa instructed by the firm of Wamalwa Simiyu & Co Advocatesfor the Applicant and by Mr Bwonchiri instructed by the firm of Omundi Bw’onchiri Advocates for the Respondents.
I have considered the application, the rival affidavits and submissions by Counsel.
Order 45 Rule 1(1) of the Civil Procedure Rules provides: -(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 review of Judgment to the Court which passed the decree or made the order without unreasonable delay.” Emphasis mine.It is clear from the above that while Section 80 of the Civil Procedure Act donates the power for review, Order 45 of the Civil Procedure Rules sets out the rules. It is also manifest that the Court’s jurisdiction for review is limited on the following grounds: -1.Discovery of new and important matter or evidence which, even with due diligence, was not within the knowledge of the Applicant nor could it be produced when the decree was passed or the order made.2.On account of some mistake or error apparent on the face of the record.3.For any other sufficient reason.4.Finally, the application must be made without unreasonable delay.
The gist of the Applicant’s application is that there is “same mistake or error apparent on the face of the record” to warrant a review of my ruling delivered on March 23, 2022. That is the ground of review which she relies on as is clear from the following paragraph of his supporting affidavit: -
Having pleaded as a ground for review the fact there is “some mistake or error apparent on the face of the record ,” the Applicant had the duty to prove the same. And in doing so, the Applicant was required to satisfy what the Court of Appeal stated in the case of National Bank of Kenya Ltd .v. Ndungu Njau1997 eKLR, that is: -Counsel for the Applicant has correctly cited the above authority and gone on to submit as follows: -To file a document simply means to place it in a particular file or any other designated place for purposes of record. In Black’s Law Dictionary 10th Edition, the noun “file” is defined as: -The verb “file” on the other hand is defined in the same Dictionaryas: -In the Oxford Advanced Learners Dictionary 9th Edition, the verb “file” is defined as follows: -The Applicant clearly shot himself in the foot when he depones in paragraph six (6) of his affidavit that the “supplementary affidavit which was filed by the applicant on the 8.12.2021 which affidavit though filed and duly received was not placed in the Court record ……...” Clearly, if the said affidavit “was not placed in the Court record ,” then it was not filed. Conversely, if the said affidavit was filed, then it ought to have been in the Court record for my perusal when I was determining the Notice of Motion dated 9th November 2021. The truth of the matter, as properly conceded by the Applicant, is that the said affidavit was not filed and was not therefore part of the record. That affidavit has only now been annexed to the application under consideration. If indeed the said supplementary affidavit and any other documents were infact received in the registry but, for one reason or another, were not placed in the Court file, a simple letter to the Deputy Registrar would have addressed that lapse. Court registries are manned by human beings. To err is human. However, there is nothing suggesting that the document was received but not filed. It is clear that no affidavit was forwarded to the Court. In the circumstances, it cannot now be argued that there was “some mistake or error apparent on the face of the record ” to warrant a review of this Court’s ruling delivered on 23rd March 2022. Since the supplementary affidavit was not filed, that cannot be some mistake or error apparent on the face of the record because this Court could not have known of it’s existence. That was the mistake or error on the part of Counsel for the Applicant. In Otieno Ragot & Company Advocates .v. National Bank of Kenya Ltd 2020 eKLR, the Court of Appeal while considering such a mistake by Counsel had the following to state: -There is no doubt that both the Applicant and his Counsel could, with due diligence, lay their hands on the said supplementary affidavit.
In any event, even if the said supplementary affidavit, which has now been annexed to the current application, had been annexed to the application dated November 9, 2021, it would not have come to the aid of the Applicant. This is because, such affidavit in itself cannot be proof that the application filed in the Subordinate Court had infact been withdrawn by the time the dismissed application was being filed. As Counsel for the Respondents has rightly pointed out in his submissions, there is no evidence that the pending application in the Subordinate Court was withdrawn. If indeed the pending application in the Subordinate Court had been withdrawn, then the Applicant was required to annexe the relevant order endorsed by that Court as proof that infact that application was no longer pending and had infact been withdrawn. It is not clear why such an order was not annexed to either this application or even the previous application. Further, unless the withdrawal was by consent of the parties, the order ought to have been served upon the Respondents. That, in my view, is the intent of Order 25(1) of the Civil Procedure Rules. Parties and their Counsel must appreciate that it is the Court order marking a suit or application as withdrawn which clothes such withdrawal with any legal effect. The 1st Respondent was therefore plainly correct when she deponed in paragraph six (6) of her replying affidavit that not only was there no endorsement to confirm that the application pending before the Subordinate Court had been withdrawn and further, no such Notice of Withdrawal had been served upon the Respondent’s Counsel.
It is instructive to note, further, that no supplementary affidavit was filed to rebut the averments contained in the 1st Respondent’s replying affidavit. Those averments therefore remain un – rebutted.
Having considered all the evidence herein, I find that the Notice of Motion dated 28th March 2022 is devoid of merit. It is accordingly dismissed with costs to the Respondents.