(1)Before the Court for determination is the Notice of Motion dated 22nd June 2021. It was filed by M/s Cootow & Associates on behalf of the respondent under Article 159(2)(d) and 165(3) of the Constitution, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya as well as Order 51 Rule 1 of the Civil Procedure Rules, 2010 for orders that:(a)the Court be pleased to review and set aside orders issued in this matter by Justice Farah Amin on 12th September 2019 referring this matter to mediation or any other alternative dispute resolution mechanism.(b)the costs of the application be provided for.
(2)The application was premised on the ground that there is an error apparent on the face of the record because, as at 12th September 2019 when the impugned order was made, the Court was functus officio. The application was supported by the affidavit of Mr. Augustus Wafula, Advocate, sworn on the 22nd June 2022, in which he averred that the petitioners filed this Petition on 17th May 2017 and that the respondent objected thereto by way of a Notice of a Preliminary Objection dated 19th June 2017, contesting the Court’s jurisdiction to hear the matter on the ground that the Petition was res judicata. He added that the Court considered the Preliminary Objection and rendered its decision on 15th October 2018, striking out the Petition with costs.
(3)Mr. Wafula further averred that, being aggrieved by that decision, the petitioners filed an appeal to the Court of Appeal which was similarly struck out, thereby affirming the ruling dated 15th October 2018. He therefore contended that the orders by Justice Farah Amin dated 12th September 2019 by which the dispute was referred to mediation was made in error, granted that the Court was already functus officio. Thus, Mr. Wafula deposed that it is in the interest of justice that the error be rectified to bring the proceedings herein to closure in line with the established principle that litigation must come to an end. He added that no party stands to be prejudiced if the orders sought are granted considering that the parties had an opportunity to litigate the dispute both before this Court and the Court of Appeal and the proceedings brought to an end for practical purposes.
(4)A perusal of the record shows that, although given several opportunities to file a response to the application, the petitioners’ counsel failed to do so. Accordingly, the matter was fixed for ruling on the basis of the court proceedings. It is also noteworthy that, although Mr. Wafula made reference to the ruling dated 15th October 2018 at paragraph 3 of his Supporting Affidavit, what was annexed is in fact a ruling dated 24th May 2018 in respect of an application for temporary injunction pending appeal. I have nevertheless perused the court record and the picture painted thereby is as follows:(a)When the petitioners filed this Petition, they concomitantly filed a Notice of Motion dated 10th May 2017 under a Certificate of Urgency seeking a temporary injunction to restrain the respondent from evicting or harassing them or interfering with their tenancy pending the hearing and determination of the application and ultimately the Petition. The application was certified urgent and fixed for hearing on 24th May 2017. The court record further shows that, on the hearing date, the parties agreed, inter alia, to “forgo the application and to deal with the Petition instead.” The respondent thereafter filed a Notice of Preliminary Objection dated 19th June 2017 contending that the Petition was res judicata. The Preliminary Objection was urged before Hon. Chepkwony, J. who thereafter upheld the same in her ruling dated 15th March 2018; with the result that the entire Petition was struck out.(b)Being aggrieved by the decision of the Court, the petitioners filed an appeal to the Court of Appeal vide their Notice of Appeal dated 21st March 2018. In a subsequent ruling dated 24th May 2018, the Court (Hon. Chepkwony, J.) acknowledged that an appeal had been filed against the ruling dated 15th March 2018, but nevertheless dismissed the application for temporary injunction pending appeal on the ground that no arguable appeal existed where there was a lack of jurisdiction. That the appeal was heard and determined was deposed to by Mr. Wafula at paragraph 4 of his Supporting Affidavit, though no copy of the decision was availed. The outcome, according to the unrebutted averment by Mr. Wafula, was that the appeal was struck out on 15th October 2018; thereby affirming the determination made herein by Hon. Chepkwony, J. on 15th March 2018.(c)Thereafter, on the 12th September 2019, the file was placed before Hon. Amin, J. during the service week and having heard the parties, the Court made an order, which is the subject of the instant application, that:(d)Attempts to have the impugned order set aside by Hon. Ogola, J. as the Presiding Judge by way of administrative directions was declined by the Judge on 15th March 2021. Instead he left it to the parties to proceed as they may wish and marked the petition as “stood over generally”. It was thereupon that the respondent filed the instant application.
(5)In the light of the foregoing, the single issue for determination is the question whether, in the circumstances, the respondent has made out a case to warrant review of the order dated 12th September 2019.
(6)The review jurisdiction is reposed in Section 80 of the Civil Procedure Act, which states as follows:
(7)The procedural imperatives for the above provision are to be found in Order 45 Rule 1 of the Civil Procedure Rules, wherein it is provided that:(1)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, 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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(8)I hasten to point out that the application has been made before this Court because Hon. Farah Amin, J. had been transferred out of the station by the time the application was filed. As pointed out by Mr. Wafula in his submissions on 3rd May 2023, the judge has since left the Judiciary. In the premises, the matter was proceeded with pursuant to Rule 45(2)(2) of the Civil Procedure Rules, which provides that:(2)If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.”
(9)Accordingly, I have given due consideration to the application. From the aforesaid provisions, a party seeking review is under obligation to demonstrate that:(a)there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant’s knowledge or could not be produced at that time; or(b)there is some mistake or error apparent on the face of the record, or(c)there is any other sufficient reason; and(d)the application had been brought without unreasonable delay.
10.In this instance, the application is predicated on the ground that there is an error apparent on the face of the record; and for this purpose it is now settled that the error must be self-evident on the record. Hence, in National Bank of Kenya Limited v Ndungu Njau  eKLR, the Court of Appeal held that:
(11)As to what amounts to an error apparent on the face of the record, the Court of Appeal, in Nyamogo & Nyamogo Advocates v Kago (2001) 1 EA 173, had this to say:
(12)In the instant matter, it is manifest that by the time the impugned order was made, a fundamental point of jurisdiction had been raised and upheld by a court of concurrent jurisdiction on the basis that the suit was res judicata. The order was affirmed on appeal by the Court of Appeal, thereby bringing the dispute to closure for all intents and purposes. I therefore have no hesitation in finding that the impugned order was made in error as the Court was functus officio at the time.
(14)Similarly, in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) (supra), the Court of Appeal held as follows on the functus officio doctrine:
(15)Thus, it is plain that the impugned order was made in error and therefore is the sort of order envisaged by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The error is apparent on the face of the record and does not require elaborate arguments to establish. I am also satisfied that the instant application was filed without undue delay.
(16)In the result, the respondent’s application dated 22nd June 2021 is hereby allowed and orders granted as hereunder:(a)That the order issued in this matter by Justice Farah Amin on 12th September 2019 referring this matter to mediation be and is hereby reviewed and set aside.(b)That there be no order as to costs as the matter is hereby marked closed.It is so ordered.