1.On June 21, 2018 the Environment and Land Court (ELC) (JM Angima, J) at Embu dismissed with costs an application filed by the appellant Wilson Njogu Karimoni seeking to review and set aside the orders that had been issued dismissing for want of prosecution his suit which he had filed against the 1st respondent Embu Farmers Sacco, the 2nd respondent Mwangi Auctioneers and the 3rd respondent Githumbu Njeru. This appeal was filed to challenge the dismissal of the review application. The applicant was aggrieved by the dismissal and raised the following grounds:-
2.To contextualise this appeal, the suit before the Environment and Land Court was as follows. The appellant was the registered proprietor of LR Kagaari/Weru/1232. On April 2, 2002 he charged it in favour of the 1st respondent to secure a loan of Kshs 600,000. When he defaulted in repayment to the tune of Kshs 1,063,300, the 1st respondent instructed the 2nd respondent to sell the property to recover the outstanding loan. The 2nd respondent issued a 45 days’ redemption notice, and, subsequently, a notification of sale, to the appellant. There was no repayment, the suit property was advertised for sale. On the due date, the auction was cancelled as the highest bidder was for Kshs 700,000. The sale was re-advertised, following which the suit property was sold to the 3rd respondent for Kshs 700,000.
3.The appellant filed originating summons dated December 21, 2011 seeking a declaration that the sale was invalid, null and void; that the sale and transfer to the 3rd respondent be set aside; and that there be an order re-transferring the land to him. In opposing the suit, the 1st and 2nd respondents filed a preliminary objection to challenge the jurisdiction of the court to hear and determine the case. The basis was that the suit was subject to the provisions of section 76 of the Cooperative Societies Act, and therefore the court did not have jurisdiction. The other response to the suit was that, the applicant had been in blatant default of repaying the loan whereupon the 1st respondent had elected to exercise the right of sale under sections 74 and 77 of the Registered Land Act, and that all statutory notices had been issued.
4.Subsequently, the 1st and 2nd respondents filed an application dated June 26, 2015 seeking the dismissal of the suit for want of prosecution. The appellant opposed the application. The application was heard, and on 2nd November 2015 a ruling was delivered dismissing the suit with costs for want of prosecution. The appellant filed an application to review the orders in the ruling. The application was dismissed with costs. The decision is the subject of this appeal.
5.The appellant was unrepresented during this appeal, but filed written submissions on which he elected to rely. Learned counsel, Ms. Ndorongo was present for the 3rd respondent and held brief for learned counsel, Mr Njeru Ithiga for the 1st and 2nd respondents. Counsel for the 1st and 2nd respondents had filed written submissions which the 3rd respondent’s counsel chose to rely on to oppose the appeal.
6.In the appellant’s submissions, before the pleadings had closed in the case before the ELC, the 1st and 2nd respondents filed a preliminary objection to jurisdiction; that the objection had not been determined to see whether the court had jurisdiction when, at the instance of the two respondents, the suit was dismissed for want of prosecution. He submitted that it was up to the respondents to prosecute the objection, which they did not do, and therefore the dismissal of the suit was erroneous. The appellant submitted that one of the reasons why there was delay in prosecuting the suit was the objection which had not been determined. The two other reasons why there was delay in the prosecution of the case were that the court file had gone missing, and because his advocate had travelled abroad for medical attention. Lastly, he submitted that his parcel of land had been irregularly sold because of there not having been issued the requisite statutory notices. His right to be heard, he concluded, had been compromised; and that substantive justice had not been done to the case.
7.According to the submissions by the respondents, the grounds in the appeal did not touch on the issues canvassed in the application subject of the appeal. The only relevant grounds were, according to the respondents, 5, 6, 8 and 13; and that, even then, the appellant had all along been indolent in the prosecution of the case. He, therefore, could not blame the court that dismissed his application for review.
8.We have anxiously considered the ruling subject of the appeal, the grounds of the appeal and the rival submissions. We are cognizant of the fact that the appellant did not appeal against the ruling that dismissed his suit for want of prosecution. In the grounds filed in the instant appeal, he raised issues that would have been relevant had he filed an appeal against the dismissal of his suit.
9.In the application that he filed for review, the grounds were that the suit was erroneously dismissed for want of prosecution; that the pleadings had not closed; that the respondents had blocked the hearing of his suit by filing a notice of preliminary objection; that his advocate was away for treatment, hence the delay in the prosecution of his case; and that the court file was missing for a long time and that was why he could not set down the suit for hearing. The ELC found that all these reasons had been raised, considered and a determination made thereon during the application filed to dismiss the suit for want of prosecution. The only new ground was in regard to the loss of the file. This ground was dealt with in the ruling under consideration in the following manner:-
10.We entirely agree with the learned Judge. If the appellant went to the registry with the intention of listing the case for hearing and was informed that the court file was missing, and that this had continued for a long time, this was information within his knowledge. He ought to have raised it as a ground in opposing the application to dismiss his suit for want of prosecution. In the application the respondents were complaining that for four years the appellant had failed to prosecute his case. When he raised the issue of the loss of the file during his application for review, the court correctly pointed out that he was raising an issue that he was aware of at the time of the application to dismiss his suit, and therefore this could not form a ground for review as –
11.The application before the ELC had been brought under Order 45 of the Civil Procedure Rules that provides as follows:-
12.This was an application that required the ELC to consider the circumstances in the matter and, bearing in mind the provisions above, exercise his discretion to allow or not to allow the same. The question that arises is whether we should interfere with the learned Judge’s exercise of discretion. For us to do so, we must be satisfied that the learned Judge misdirected himself in law or misapprehended the facts or considered matters he ought not to have considered or failed to take into account a matter he ought to have taken into account and, as a result, arrived at a wrong decision. Madan JA. (as he then was) held as follows in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, Civil Appeal No 36 of 1983:-
13.We have looked at the grounds of appeal. None of them alleged that, in regard to the ruling in the application for review, that the learned Judge misdirected himself on the law, or that he did not appreciate the facts, or failed to consider an important matter or considered a matter he ought not have considered or that he exercised his discretion and reached a decision that was plainly wrong.
14.We would like to reiterate that an erroneous interpretation of the law, an erroneous decision or an erroneous conclusion on the facts cannot be corrected by the remedy of review. They can only be corrected by an appeal. Similarly, a request that entails a re-appraisal of the evidence and re-analyzing a decision to establish whether or not a court was right or wrong are all beyond the scope of review (National Bank of Kenya Ltd v Ndungu Njau, Civil Appeal No 211 of 1996; Paul Maniki v NHIF Board of Management  eKLR).
15.It is clear to us that the appellant was aggrieved by the dismissal of his suit for want of prosecution. He wanted to be allowed to call evidence to prove the complaint in his originating summons, which was that the sale of his land was invalid because he had not received statutory notices, among other documents. His grievance was that by the dismissal of his suit he had been removed from the seat of justice; and that his fundamental right to be heard on the merits of the originating summons had been compromised. His complaint was legitimate, and that is why he should have appealed against the ruling that dismissed the suit for want of prosecution. On the facts, however, the remedy of review was not available to him, and, on this we agree with the learned Judge who properly exercised his discretion on the application subject of this appeal.
16.In conclusion, we find no merit in the appeal. We dismiss it with costs.