Analysis And Determination
10.Having considered the application, affidavits and the rival submissions, I find that the only issue for determination is whether the ruling delivered on the May 29, 2020 should be reviewed.
11.The law that governs applications for review is set out in Section 80 of the Civil Procedure Act and on order 45 rule 1 of the Civil Procedure Rules.
13.Order 45 rule 1 of the Civil Procedure Pules provides that: -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, orb)By a decree or order from which no appeal is hereby allowedand 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 the judgment to the court which passed the decree or made the order without unreasonable delay.
14.The provisions of order 45 were restated by the Court of Appeal in the case of Benjoh Amalgamated Limited & Another Vs Kenya Commercial Bank Limited (2014) eKLR where the Court held that: -
15.Similarly, in Republic Vs Public Procurement Administrative Review Board & 2 Others (2018) eKLR the court held that: -
16.It is apparent from the above provisions that for an Applicant to succeed in an application for review he must satisfy the following requirements;a)Discovery of new and important matter or evidence which after the exercise of due diligence was not with the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made.b)Existence of some mistake or error apparent on the face of the record.c)Any other sufficient reason.d)Application be made without unreasonable delay.
17.In the present matter the Applicant is seeking to review and set aside the ruling delivered on 29th of May 2020. The ruling was pursuant to the application dated 19/09/2019 which was allowed application in the following terms: -a)That leave be and is hereby granted to substitute out of time the deceased Appellant Kithakumu Ngala Moko with one Jonathan Kithakumu Ngala the administrator of his estate and the abated appeal be revived.b)That in the alternative to (d) above, the temporary order of stay of execution herein be granted by this court on 27/06/2007 be reinstated alongside the application dated 26/06/2007.c)That this Honourable Court be pleased to issue an order of stay of execution of the decision of the Eastern Provincial Land Dispute Appeals Committee at Embu Case No 56 of 2006; Joseph Mutua Kitete Vs Kithakumu Ngala Moko read and/or adopted as a judgment of Makueni SRM Court in LDTC No. 17 of 2006; Fredrick Kitete Musembi Vs Kithakumu Ngala Moko pending the inter partes hearing and determination of the appeal herein.d)That costs be in the cause.
18.In the present matter, the Applicant has not shown that there is discovery of new or important matter of evidence that the Applicant could not have placed before the Court during the hearing of the application dated 19/09/2019 or before the ruling was delivered on 29th of May 2020.
19.As regards the second requirement, the Applicant must establish that there is an error apparent on the face of the record. The Applicant herein contends that there is an error apparent on the face of the record to review the judgment of this court. Counsel submitted that the Court deviated from its previous decisions without any invitation for review or setting aside of the previous delivered decisions. The basis of this argument is that the Court did not consider its previous decisions and that it specifically disregarded the following facts: -i)The appeal had abated hence there was no basis on which the orders of stay could be issued.ii)There was no basis upon which the court could entertain the application since the Appellant had died on 17/10/2015 and the appeal had abated before the filing of the present application.iii)The orders of review sought by the appellant are not capable of being granted.iv)That the Honourable court cannot sit over appeal over its own orders.
20.Counsel for the Respondents argued that the Applicant was seeking review on the grounds that the court misapplied and/or failed to apply the relevant law in arriving at the orders dated 29th of May 2020.
21.In the case of Nyamogo & Nyamogo Vs Kogo (2001) EA 170 the court held as follows;
22.Similarly, in the case of Timber Manufacturers and Dealers Vs Nairobi Golf Hotels (K) HCCC No. 5220 of 1992, Emukule J held that;
23.The Applicants stated that in the application dated 19/09/2019 the Court was invited to review its decision. That vide a ruling dated 29/05/2019, the Court deviated from its previous decisions without any invitation for review and setting aside of its previous decisions. He went on to state that the Respondent did not appeal against the ruling delivered on 22/01/2019 which marked the appeal as abated. The Applicants argued that the Court did not consider and pronounce itself on the aforesaid issues. In a nutshell, the Applicants are of the view that the Court did not apply and/or interpret the law correctly. In the case of Abasi Belinda Vs Fredrick Kangwanu and Another (1963) EA 557 Bennet J aptly held as follows;
24.Similarly, the Court of Appeal in Pancras T. Swai Vs Kenya Breweries Limited  eKLR observed as follows: -
25.The grounds laid by the Applicants do not disclose an error apparent on the face of the record but in my view the grounds for an Appeal. In the present application, the Applicants have not pin pointed the errors that are apparent on the face of the record. As correctly observed by the Respondent, a misapprehension of the applicable law should not be a ground for an application for review.
26.The Court is also mandated to consider if there are sufficient reasons to review the Court’s judgment. Discussing what constitutes sufficient cause for purposes of review, the Court of Appeal in the case of The Official Receiver and Liquidator Vs Freight Forwarders Kenya Ltd (2000) eKLR stated that;
27.The Applicants have not demonstrated any sufficient reason to warrant a review of the Court’s judgment.
28.Finally, the Applicant must demonstrate that the application has been made without unreasonable delay.
29.In the present matter, the ruling sought to be reviewed and set aside was delivered on 29th of May 2020. The instant application was filed on 28th of July 2021 one and half years later. That duration is far from reasonable and the same has not been explained. In so finding, I am persuaded by the findings in the case of John Agina Vs Abdulswamad Sharif Alwi C.A Civil Appeal No. 83 of 1992, where the court stated as follows;
30.In the end, I find that the application is devoid of merit and the same is dismissed with costs to the Respondent.