Otieno v Owino

5. Further, he avers his counsel was not informed of the mention dates of 6/6/2024 and 11/06/2024 which eventually led to the appeal’s dismissal. In his view, this was unprocedural. Respondent’s case 6. The motion is strongly opposed by the respondent’s replying adavit which she deposed on 18/10/2024. She reiterated the chain of events contained in the appellant’s adavit of how the appeal was eventually led before this court. 7. However, she asserts the appellant was absent on the mention date of 11/06/2024 hence the appeal was struck out for non-attendance. She avers the High Court did not have jurisdiction to issue the orders it did and she has since sought an order for review and stay of execution in HCCC Misc. No. E003 of 2024. 8. Further, she states the appellant is in contempt of court orders and that this court has jurisdiction to entertain the matter and the High Court could suo moto transfer the matter to this court. Parties’ submissions 9. As directed by the court, parties led written submissions. The appellant’s law rm on record Ms. Vadanga Lusina & Co. Advocates led written submissions dated 28/10/2024 and identies 3 issues for resolution. 10. They are whether the appellant followed the rightful procedure while ling the memorandum of appeal dated 4/06/2024, whether the advocates on record were informed that the court le in HCCA/ E020/2024 had been transferred from the High Court to this court, and whether the appellant or his counsel were served with the mention date of 11/06/2024 as required by the law. 11. The respondent’s law rm on record Ms. Omondi Omeri & Mwasaru Advocates led written submissions dated 6/11/2024 and identies a singular issue for determination- whether this Honorable Court ought to reinstate the memorandum of appeal dated 4/06/2024. 12. Upon identifying and considering the issues for determination, this ruling shall later on in its analysis and determination, consider each of the counsels' arguments on the particular issue and also bear in mind the judicial precedents that the respondent’s counsel relies upon to buttress her arguments. Issues for determination 13. Having carefully given thought to the motion, its grounds, adavits, and submissions, the issues that commend themselves for determination and which shall be addressed together are: a. Whether the appellant has met the legal threshold to warrant the reinstatement of the appeal. b. What orders should be issued including an order as to costs? Analysis and determination 14. The applicable provisions that govern the review of court orders are encapsulated by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 states that; “ Any person who considers himself aggrieved-(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13812/eng@2024-12-11 2

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the court which passed the decree or made the order, and the court may make such order thereon as it thinks t.” 15. The salient conditions brought out in Order 45 Rule 1 (1) of the Civil Procedure Rules such as the discovery of new and important matter, mistake, and sucient cause have to be proved by an applicant in this case, the appellant. 16. I also associate myself with the principles outlined in the case of Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya [2019] where the court on analysis of law and jurisprudence on review of court decisions summarized the guiding principles for review of a court decision thus: “ i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression "any other sucient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specied grounds. iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. vi. While considering an application for review, the court must conne its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. vii. Mere discovery of new or important matter or evidence is not sucient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record. ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13812/eng@2024-12-11 3

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x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.” 17. It is undoubted the appellant moved this court under the auspices of Order 9 Rule 9 of the Civil Procedure Rules which deals with post-judgment change of advocates or notices to act in person. This is erroneous. Nevertheless, this is a technical issue that does not go to the root of the issues for determination. 18. Having scrutinized the documents as led, my understanding of the appellant’s case is that his appeal was timeously led before this court as the High Court had already granted him leave to appeal. However, there were procedural errors by the court that led to the unfortunate orders that were issued on 11/06/2024. 19. Whereas the respondent agrees on the issue of leave, she contends that the court did not err and that the blame squarely fell on the appellant for failing to attend court on 11/06/2024 thus leading to the orders issued. 20. Since this is a court of record and to get a true picture of the issue in contestation, I have indeed conrmed in HCCC Misc. No. E003 of 2024, the appellant was granted leave to appeal on 22/05/2024 on condition he was to appeal within 14 days- he complied as he led a memorandum of appeal on 5/04/2023. 21. Signicantly, the order that was issued to him on 22/05/2024 that granted him leave to appeal was not annexed to the memorandum of appeal as required by Order 42, Rule 13(4) (f) of the Civil Procedure Rules. 22. HCCC Misc. No. E003 of 2024 had run its course as the orders sought were spent. Subsequently, the appeal was led as HCCA No. E020 OF 2023. It is obvious the appellant is of the wrong notion that HCCC Misc. No. E003 of 2024 forms part of HCCA No. E020 OF 2023. 23. The late Hon. learned High Court judge dealt with the appeal as a chamber matter on 6/06/2024. 24. As a chamber matter, the parties were not required to be notied of the date. Nonetheless, the directions that ensued therein were to be uploaded to the E-platform or at least the parties were to be notied. I am uncertain if this was done. 26. Be that as it may, the late Hon. learned judge on 6/06/2024 found he did not have jurisdiction, he transferred the matter to this court and issued a mention date before me on 11/06/2024. 27. It was expected the registry sta would have served the parties with a mention notice but that was not so. 28. Erroneously too, this court on 11/06/2024 dealt with it as a chamber matter and the signicance of this is that it denied the parties an opportunity to be heard. On this date of 11/06/2024, the court found the appeal had been led out of time and struck it out. 29. Having set out the chronology of the history of this matter, it is without a shadow of a doubt the court on 11/06/2024 erroneously struck out the appeal. 30. Had the appellant attached the order that granted him leave to appeal to the memorandum of appeal and registry served the parties with the mention notice, the unfortunate turn of events that led to the striking out of the appeal would not have arisen. This is an appeal that warrants a reinstatement. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13812/eng@2024-12-11 4

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31. For the foregoing reasons, I ultimately nd the notice of notion dated 15/08/2024 is merited. It is trite law costs follow the event and costs shall abide by the outcome of the appeal. I hereby issue the following orders:a. The order issued on 11/06/2024 striking out the appeal is hereby set aside and the appeal herein is reinstated. b. The appellant is hereby directed to le and serve his record of appeal within fourteen (14) days from the date of this order, failure of which the order reinstating this appeal shall stand vacated. c. Costs shall abide by the outcome of the main appeal. d. Matter to be mentioned for directions on 4/03/2025. e. Calling letter to be issued. Orders accordingly. DELIVERED AND DATED AT SIAYA THIS 11TH DAY OF DECEMBER 2024. HON. A. Y. KOROSS JUDGE 11/12/2024 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: In the Presence of: Mr. Gathanga for the applicant Mr. Omondi for the respondent Court assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13812/eng@2024-12-11 5

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