Gichuru v Inspector General of Police & 5 others (Petition E004 of 2021)  KEELC 689 (KLR) (1 February 2023) (Ruling)
Neutral citation:  KEELC 689 (KLR)
Republic of Kenya
Petition E004 of 2021
BM Eboso, J
February 1, 2023
Misheck Kariuki Gichuru
Inspector General Of Police
Directorate of Criminal Investigations
Sub County Criminal Investigation Officer, Ruiru Sub-County
Director Of Public Prosecution
District Land Registrar, Thika
1.This court rendered a ruling in this petition on February 16, 2022. Through the ruling, the court struck out this petition on the ground that this court is not the proper forum where to ventilate the grievances raised in this petition. The court rendered itself thus:
2.About 35 days subsequent to the delivery of the above ruling, the petitioner, through M/s C G Waithima & Co Advocates, brought a notice of motion dated March 21, 2022, inviting this court to review its ruling under section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules. The said application is the subject of this ruling.
3.The application was premised on the grounds set out in the application and on the supporting affidavit sworn on March 21, 2022 by Meshack Kariuki. His case is that at the time of filing the petition, the hearing in Ruiru SPMC E & L Case No 103 of 2019 had not commenced but the cause was subsequently determined on December 2, 2021 during the pendency of this court’s ruling on the preliminary objection contesting the jurisdiction of this court, dated July 9, 2021. He contends that because the suit in the trial court has been determined, the trial court has become functus officio. Secondly, he contends that this court applied wrong facts in its ruling of February 16, 2022 in that it did not appreciate crucial evidence before it.
4.The petitioners canvassed the application through written submissions dated June 20, 2022. Both the Attorney General and the Director of Public Prosecutions did not respond to the application. Similarly, they did not tender submissions on the application.
5.I have considered the application together with the written submissions tendered in support of the application. I have also considered the relevant legal frameworks and the prevailing jurisprudence on the key question that falls for determination in the application. The single question falling for determination the application is whether the application meets athe criteria upon which a trial court exercises jurisdiction to review its judgment or ruling.
6.The ruling which triggered the present application was rendered in a petition brought under articles 35, 40, 48, 50, (2k), 50(3), 244(b), 244(a), 258, 259 and 260 of the Constitution. Both the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 are silent on how review jurisdiction relating to a ruling by a trial court is to be exercised. In the circumstances, our courts apply the principles set out in section 80 of the Civil Procedure Act and order 45(1) of the Civil Procedure Rules.
7.Section 80 of the Civil Procedure Act provides as follows:
8.Order 45 rule 1 of the Civil Procedure Rules provides as follows:
9.Our superior court and courts in the Commonwealth have, in a myriad of decisions, given guidelines on how the above jurisdiction is exercised. The Court of Appeal in Daniel Macharia Karagacha v Monicah Watithi Mwangi, Civil Appeal No 159 of 2000 rendered itself on the criteria upon which review jurisdiction is exercised in the following words:
10.The Supreme Court of India in the case of Afit Kumar Rath v State of Orisa & others (a Supreme Court case)596 at page 608 rendered itself on how this jurisdiction is exercised in the following words:
11.In the present application, the applicant contends that the trial court heard the suit that was before it; rendered a determination in the suit on December 2, 2021; and became functus officio, hence this court should review its ruling of February 16, 2022. He further contends that this court applied wrong facts in its ruling of February 16, 2022, hence it should review the ruling.
12.I have considered the above contentions. First, the applicant did not exhibit a copy of the determination by the trial court. Secondly, the impugned ruling was rendered by this court on February 16, 2022. At the time of rendering the ruling, the applicant did not bring any motion to arrest the ruling on the ground that it had been overtaken by events. He similarly did not disclose to the court that the suit in the trial court had been heard and determined by the trial court. He kept quiet and sought to mislead the court into undertaking an exercise that was going to be in futility. His main plea in the petition in relation to the trial in the subordinate court was for an order compelling the 3rd respondent to produce the original investigation file or reconstructed file relating to Ruiru/Ruiru East Block 1/1407 to enable him fully ventilate his case in the trial court. All the other prayers were declaratory reliefs that fell outside the jurisdiction of this court. As observed in the impugned ruling, the trial court had jurisdiction to issue appropriate orders for production of any records that the petitioner desired to be produced. For the other reliefs which the petitioner sought, this court found that the proper court to consider them was the High Court.
13.Can the trial and determination of the dispute by the subordinate court properly qualify to be described as new and important matter or evidence which the petitioner discovered after this court delivered the impugned ruling? In my view, the trial and determination of the dispute by the trial court was a matter that was within the knowledge of the petitioner at the time this court rendered the impugned ruling. Indeed, in the petitioner’s own words, the trial court made a determination of the dispute on December 2, 2021. The impugned ruling was subsequently rendered on February 16, 2022. It cannot therefore be said that the trial and determination of the trial court is a new matter or evidence.
14.The second ground upon which the petitioner seeks a review of the impugned ruling is that this court applied wrong facts in the impugned ruling. If indeed this court made factual errors in the impugned ruling, that is a matter for appeal to the appellate court as provided under our legal system. By inviting this court to review its ruling on the above ground, the petitioner is, in essence, inviting this court to exercise appellate jurisdiction over its own ruling. This court cannot do that.
15.For the above reasons, my finding on the single question in the application dated March 21, 2022 is that the application has not satisfied the criteria upon which a trial court exercises jurisdiction to review its decision. Consequently, the application dated March 21, 2022 is rejected for lack of merit. Because the respondents did not respond to the application, there will be no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 1ST DAY OF FEBRUARY 2023B M EBOSOJUDGEIn the Presence of: -Mr Kinyua for the petitionerCourt Assistant: Osodo