Republic v Deputy County Commissioner Igembe South Sub County & another; M'mwereri (Interested Party); Kithure (Exparte Applicant)

on 18.8.2023. The applicant, who was the interested party in the proceedings, averred that the court made an error in the judgment in concluding that the Land Adjudication Ocer’s award was read on 7.4.2018 instead of 7.11.2018. that the appeal before the Minister was led eight days after the decision as per annexure marked MNK "3". The applicant has discovered new evidence, namely; a receipt for the appeal to the Minister, which he could not produce when he led his response to the notice of motion. 2. Further, the applicant averred that the mix-up of dates by the court constituted an error on the face of the record, and had the court considered the date of the delivery of judgment, it may have arrived at a dierent decision. Lastly, the applicant averred that the implementation of the judgment was imminent; his application was led in good faith, in the interest of justice, and without undue delay. 3. Regarding the adavits in support, Mr. Maranya, advocate for the applicant, averred that the judgment by the Land Adjudication Ocer was made on 7.11.2018 after a scene visit on 17.10.2018, and an appeal was led on 15.11.2018 as per a receipt annexed as HK "2". Therefore, the applicant states that it was not true that the appeal had been led out of time. 4. As to the reason that the receipt was not led with the responses, the deponent averred that the applicant could not obtain the receipt from the land oce within the timelines set by the court, and he always believed that the 1st and 2nd respondents would produce documents to clear the doubt in respect to the date which they never did. 5. Moses Ntonjira Kithure, the exparte applicant, has opposed the application by a replying adavit sworn on 30.8.2023, terming annexure MNK "3" as uncertied and similar to annexure HKM “9 (b)”, which was included in the replying adavit to his notice of motion hence could not amount to newly discovered evidence to warrant a review. 6. The exparte applicant averred that the proceedings supplied to him by the Land Adjudication Ocer indicated that the decision was made on 7.4.2018 and that no explanation has been oered as to why the payment receipt was not brought before the court during the hearing. The exparte applicant averred that the court considered the appeal had not been dated or stamped to show when it was led with the Minister or received in 2019, yet it was purportedly led in 2018. Therefore, the respondents averred that the application by the applicant was full of lies, inconsistencies, unjustied and that other than the date, the court considered other factors why the Minister's decision would not stand the test of law, making the court found that the interested party now applicant had violated Section 29 of the Land Adjudication Act. 7. The respondent averred that the allegations in the application were more of the grounds for appeal than for review, and this court should not sit on appeal of its judgment. He termed the application as an afterthought, led with delay lacking merits or justication, incompetent, factually and legally baseless, based on false adavits, and within the subordination of perjury. 8. Order 45 of the Civil Procedure Rules, as read together with Sections 80 of the Civil Procedure Act, provides that a party aggrieved by an appealable decree but from which no appeal has been preferred or where no appeal is 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 on account of some mistake or error apparent on the face of the record, to apply to the court which passed the decree without unreasonable delay. 9. Further, Order 45 Rule 3 of the Civil Procedure Rules provides that no such application shall be granted on the ground of discovery of a new matter of evidence which the applicant alleges was not within his knowledge or could not be adduced when the decree was passed or made without strict proof of such allegation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20344/eng@2023-09-27 2

page 2 of 4

10. In this proceedings, the exparte applicant led the exparte chamber summons on 9.12.2022 and ground number (c) of the statement of facts raised the issue of the appeal being led outside the timelines and led without a memorandum of appeal. On grounds number (f – k) the exparte applicant raised other issues apart from ling the appeal outside time. In the verifying adavit by Moses Ntonjira Kithure, copies of the proceedings and ruling were attached as annexures marked MNK 02 – 06, among them the ministers' and land adjudication proceedings. 11. In response, the interested party led a replying adavit sworn by Humphrey Kubai M'Mwereria on 17.3.2023 and attached annexures marked HKM 9 (a) & (b) the objection summons and the proceedings which were not certied by the issuing oce. Annexures marked HKM “10 (a) & (b)” were not dated or stamped on receipt by the receiving oce. 12. The basis of the applicant's application is that there was an error apparent on the face of the record; the court mixed up the date, and that new and important evidence has been availed to cure the mistake on the date(s) which, if was available, the court would have reached a dierent decision. 13. In Muyoki vs. DCDC Corp Ltd and another (2006) 1 E. A 243, the court cited Nyamogo & Nyamogo vs. Kogo (2001) EA 174, that an error apparent on the face of the court has no indeniteness and should be determined judicially on the facts of each case. Further, the court said an error that has to be established by a long-drawn process of reasoning or on points where there may be two opinions was not on such an error and that mere error or wrong view was no ground for a review but one for an appeal. 14. In Pancreas T. Swai vs. Kenya Breweries Ltd (2014) eKLR, the court held that if parties were allowed to seek review of decisions on the ground that the decisions were erroneous in law either because the judge failed to apply the law correctly or at all, a dangerous precedent would be set in which court’s decisions that ought to be examined on appeal would be exposed to attacks in courts in which they were made under the guise of review when such courts were {{term{refersTo |title Once a decision has been given, it is (subject to any right of appeal to a superior body or functionary) nal and conclusive. Such a decision cannot be revoked or varied by the decision-maker; nality. An enduring principle of law that prevents the re-opening of a matter before a court that rendered the nal decision thereon.} functus ocio}} and had no appellate jurisdiction. 15. In National Bank of Kenya Ltd vs. Ndungu Njau (1997) eKLR, it was held that an error on the face of the record should not require an elaborate argument and must be self-evident. Further, in Francis Origo & another vs. Jacob Kumah Munyala Court of Appeal 149 of 2001, it was observed that an erroneous conclusion of law or evidence was not a ground for review but may be a good ground for appeal. 16. Regarding new and important evidence, in Turbo Highway Eldoret Ltd vs. Synergy Industrial Credit Ltd (2016) eKLR, the court cited with approval Rose Kaiza vs. Angelo Mpajaiza (2009) eKLR, that applications on this ground must be treated with great caution. 17. In D. J. Lowe Ltd vs. Bonguo Industries NRB C. A No. 217 1998, the court said that a fact of the discovery of fresh evidence must be treated with the greatest care, for it was easy for a party who had lost to see the weak part of his case and the temptation to lay and procure evidence which would strengthen that weak part and put a dierent complexion and in which case such a party must show that there was no remissness on his part in adducing all possible evidence at the hearing. 18. In this application, the applicant blames strict court timelines for failing to procure, adduce, and avail the appeal receipt. He blames the 1st and 2nd respondents for not providing the documents to clear the doubt about when the appeal was led. Annexures to the adavit sworn by M.D Maranya advocate were not certied. The deponent of the adavit is not the interested party. The issues deponed on were https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20344/eng@2023-09-27 3

page 3 of 4

not within the knowledge of the deponent. The deponent does not state if he was the one who led the appeal in the rst instance and or participated in the Land Adjudication Ocer’s proceedings. The deponent cannot and has not explained why the applicant had to wait and collect the receipt from the land's oce when the proceedings were led and raised the question of an appeal led out of time. If the applicant was issued with a receipt when he led the appeal, one would have expected he was the custodian of the receipt and would furnish it to the court or his lawyers on record. The deponent has not claried as and when the same was procured from the land’s oce. 19. Order 45 Rule (3) of the Civil Procedure Rules requires strict proof of new and fresh evidence. The court had interrogated the notice of motion and the replying adavit by the parties alongside the respective annexures. Other than the dates, the court considered other factors, which perhaps prompted the applicant to look for the alleged new and fresh evidence to cure the irregularities in his annexures. This goes against the very essence of new and fresh evidence. Had the applicant exercised due diligence, he would have addressed the issues raised in the statutory statement of facts, the verifying evidence, and procured a certied copy of the Land Adjudication Ocer's decision and the receipt. 20. The alleged new and fresh evidence must also meet the threshold, namely that it could not be procured with reasonable diligence for use at the trial, must be able to inuence the result of the case, and must be such as is presumably to be believed or apparently credible though not incontrovertible as held in Tarmohamed & another vs. Lakhani & Co. (1958) E.A 567 & Alex Ounda Otieno vs. Orange Democratic Movement Kenya & another (2017) eKLR. 21. Moreover, the court considered the motion before it alongside grounds other than whether the appeal was led out of time, making the issues raised herein perhaps good grounds for an appeal instead of a review. The upshot is that I nd the application lacking merits. The same is dismissed with costs. Orders accordingly. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 27TH DAY OF SEPTEMBER 2023 In presence of C.A Kananu Nyamu Nyaga for Arithi for exparte applicant Kava for Maranya for interested party Mohamed for Mbaikyatta for respondent HON. CK NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20344/eng@2023-09-27 4

page 4 of 4