1.Thomas Khamala Bifwoli has come to this court seeking orders that this court be pleased to certify this matter as one raising a substantial question of law under Article 165 (4) of the Constitution which should be heard by an uneven number of judges, being not less than three, assigned by the Honourable Chief Justice.
2.That the substantial questions of law to include but not limited to: -a.Whether an order for costs made under the erroneous belief by this court that he documents applied for by the Applicant in this suit are not relevant can be recalled, varied or set aside following a subsequent determination by the same court that those documents are not only relevant but necessary for determination of the truth and resolution of the dispute between the same parties: -b.Whether the Courts of record acting suo motu or on application by any affected party have the inherent jurisdiction to set aside their judgments/decision/order, when (a) The Judgment is obtained by fraud or deceit either on the Court or on one or more of the parties; (b) The Judgment is a nullity; (c). It is obvious that the Court was misled into giving Judgment by a party; (d) The was given in the absence of jurisdiction; €. The proceedings adopted were such as to deprive the decision or Judgment the character of a legitimate adjudication; or (f). Where there is fundamental irregularity.”c.Whether Judgment dated 2 May 2018 was obtained by the 3rd Respondent misleading the court and deploying criminal means including but not limited to contempt of court and perjury.d.Whether a judgment dated 2 May 2018 was obtained by practicing fraud on the court in the form of deceit, misrepresentation/suppression of material facts and documents.e.Whether the court acting suo motu or on application by a party has inherent power to recall, vary or set aside its prior award/order of costs where it is later/subsequently discovered that the order/award was premised/founded on false and or forged relying papers and affidavit.f.Whether the proceedings leading to the dismissal of the petition and award for costs in this matter were fair when the Applicant was denied the documents which he required to prosecute the petition in the first place, the 3rd Respondent was allowed to rely on false/forged evidence and the judgment was based on false/forged replying papers.g.Whether a judgment, order or decree obtained by; practicing fraud on the court, deceit, misrepresentation or suppression of material facts and evidence is re judicata and enforceable,h.Whether the court not only has the right but a duty to deny relief to a person who misrepresents or suppresses material facts and evidence in order to obtain a judgment, decree or order of the court.i.Whether this court has a constitutional duty acting suo motu or on application by a party to recall, vary or set aside a judgment, decree or order obtained by fraud, deceit, misrepresentation, suppression of material facts and documents, or by conduct which amounts to contempt of court, perjury, and abuse of court process.
3.That this Honorable Court be pleased to refer this matter to the Chief Justice for empanelment of a bench as provided for by article 165 (4) of the Constitution. That costs of this application be awarded to the Applicant.
4.The application is based on grounds that the court inadvertently awarded costs to the 3rd Respondent for filing his papers that are patently false on their face. That the award of costs was obtained by suppression of a material facts and that the court was misled.
5.The applicant contends that at the time of the court rendering its judgment dated 2/5/2018, the respondents had custody and counting of all the requested documents but unlawfully withheld the same from the applicant. The application is supported by the affidavit of Thomas Bifwoli that reiterated the grounds that the respondent was awarded costs for filing his replying papers that are false and that the order for costs was obtained by suppression of material facts.
6.The 3rd Respondent field grounds of opposition whose import is that there is no substantial question of law raised in the application which requires to be heard by a three-judge bench as required by Article 165 (4) of the Constitution of Kenya.
16.According to the 3rd Respondent, the question raised in the application dated 24/5/2021 are merely whether the order for costs made in the Judgment dated 2/5/2018 should be raise or set aside and secondly whether costs in Kisumu ELC Petition no. 29 of 2017 should be deferred for determination with Kisumu ELC Cause No. 144 of 2012.
7.I have considered the application and the grounds of opposition and the rival submissions on record and do find that the genesis of this application is the Judgment dated 2/5/2018 where this court found the petition herein without merit and dismissed it with costs to the 3rd Respondent. The court observed that as the 3rd Respondent filed his replying papers and participated in the hearing of the petition he is entitled to costs.
8.The petitioner is dissatisfied with the order for costs on the basis of filing replying papers and has filed an application dated 24/5/2021 seeking orders that this court varies or sets aside its orders for costs made in the Judgment dated 2/5/2018. Moreover, that the costs in Kisumu ELC Petition no. 29 of 2017 be deferred for determination with Kisumu ELC no. 144 of 2012 where all the other prayers in Kisumu ELC Petition no. 29 of 2017 are being determined and that costs be provided for. The application is made under various provisions of the Constitution and Section 1A, 1B 3A of the Civil Procedure Act Cap 21 Laws of Kenya and order 51, rule 1 of the Civil Procedure Rules 2010. In a nutshell, the applicant seeks to review its Judgment on the issue of costs.
9.The 3rd Respondent filed a replying affidavit whose gist is that the 3rd Respondent was validly awarded costs for filing papers and participating in the proceedings. The applicant was dissatisfied with the Judgment and lodged an appeal and therefore an application for review can’t be entertained by virtue of provision of order 43 of the civil Procedure Rule 2010.
10.According to the respondent, once an appeal is preferred a review cannot be filed. The respondent was of the view that the court lacks jurisdiction to review. According to the respondent, the application is vexatious and abuse of the process of court and that Justice Kibunja had good reasons to awed costs.
11.This court has already found that the application dated 24/5/2021 was simply an application to review the Judgment and therefore the provision of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010 apply. I must warn myself that the application before me today is the one dated 22/3/2022 and not 24/5/2021.
12.I do agree with both parties that for the court to issue the orders sought a substantial question of law should be raised. I do further agree with Mr. Orengo that the question of law raised in the application dated 24/5/2021 is whether the order for costs made by this court can be set aside or reviewed and what are the principles for doing so.
13.I do with respect associate myself with the position adopted by Majanja, J in Harrison Kinyanjui vs. Attorney General & Another  eKLR where he held that:
14.I also refer to the decision in Vadag Establishment vs. Y A Shretta & Another Nairobi High Court (Commercial & Admiralty Division) Misc. High Court Civil Suit No. 559 of 2011 where this Court held:
15.This provision of the constitution can also be applied by courts of equal status thus thee Environment and Land Court and the Employment and Labour Relations Court. Therefore, the only constitutional provision that expressly permits the constitution of bench of more than one Environment and Land Court judge is Article 165(4). Under that provision, for the matter to be referred to the Chief Justice for the said purpose the Environment and Land Court must certify that the matter raises a substantial question of law in the following instances:1.Whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; or2. That it involves a question respecting the interpretation of the Constitution and under this is included (i) the question whether any law is inconsistent with or in contravention of the Constitution; (ii) the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution; (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under Article 191.
16.The opinion by parties that the matter falls under Article 165(4) does not necessarily bind the Court in issuing the said certification and it does not matter that the matter raises the issue whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or that it raises the issue of interpretation of the Constitution. The Court must go further and satisfy itself that the issue also raises a substantial question of law. Moreover, the view that a substantial question of law is disclosed does not matter unless the issue also arises as to whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or that it raises the issue of interpretation of the Constitution.
17.In Community Advocacy Awareness Trust & Others vs. The Attorney General & Others High Court Petition No. 243 of 2011 where it was noted that:
18.In that case the Court proceeded to note that the promulgation of the Constitution of Kenya, 2010 brought into being a whole new law that in every respect raises substantial questions of law because the Constitution is new. This Constitution has been recognised by the Supreme Court as being transformative in nature. It has expanded Bill of Rights as set out in Chapter Four, the Citizenship issue in Chapter Three, the Leadership and Integrity issue in Chapter Six and Chapter Eleven dealing with Devolved Government are matters which need constant interpretation by the courts and if every such question were to be determined by a bench of more than one judge, other judicial business would definitely come to a standstill and if that were to happen, then the expectation of the public to have their cases decided expeditiously as provided under Article 159(2) of the Constitution and sections 1A and 1B of the Civil Procedure Act would never be realised.
19.In Chunilal V. Mehta vs Century Spinning and Manufacturing Co. AIR 1962 SC 1314, it was held that:
20.In Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 it was held that:
21.In this matter the applicant has made a simple application for review of judgment on costs that does not raise a substantial question of Law but merely a question of interpretation of the law that can be done by one judge. In conclusion, I do find that the applicant has not established that there is a substantial question of law raised in the application dated 24/5/2021 and therefore the application dated 22/3/2022 is dismissed.