Hainja v Opondo

Rules and other enabling provisions of the law. It is based on the grounds set out therein and supported by the adavit of the Plainti. The gist of the application is that in the judgment delivered on 6th March 2024, this Court may not have noticed that the parties in this case and the parties in Busia ELC Case No 28 of 2013 were dierent and hence this suit is not res judicata. 6. When the Notice of Motion came up on 1st October 2024, Mr Ashioya Counsel for the Plainti informed the Court that he had served Mr Wanyama counsel for the defendant with the same but had not been serve with any response. I therefore xed it for ruling on 5th December 2024. I noticed from the record however that MR WANYAMA did write a letter to me dated 1st October 2024 to which he annexed Grounds of Opposition and submissions to the application stating that he had not been served. That letter was never brought to my attention yet it is addressed to me. There is also an adavit of service by one Elijah Amukhale Okutima showing that MR Wanyama was infact served with the application on 7th August 2024. It is not clear how the Grounds of Opposition found their way into this le after I had set a ruling date. The same are expunged from the record and the Deputy Registrar to caution the Registry about receiving and ling pleadings or other documents without my express permission once the le has been closed for ruling or judgment. This Court will therefore treat the Motion as un-opposed. 7. Notwithstanding the fact that the Motion is not opposed, this Court must consider it in accordance with the applicable law and relevant precedents. 8. The Plainti seeks the main remedy that this Court reviews and sets aside the judgment delivered on 6th March 2024. The power to review a judgment in provided for in Section 80 of the Civil Procedure Act. It reads: 80: “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 the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks t.” The procedure for invoking the above provision is set out in Order 45 Rule 1(1) of the Civil Procedure Rules as follows: 45 (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 sucient 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.” Therefore, to be entitled to the remedy of review of the judgment herein, the Plainti must satisfy the following conditions: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14021/eng@2024-12-11 2

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1. Demonstrate that there is a 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 when the order was made; or 2. Show some mistake or error apparent on the face of the record; or 3. Provide any other sucient reason; and 4. Approach the Court without unreasonable delay. If I may start with the 4th condition above, the judgment sought to be reviewed was delivered on 6th March 2024 by way of electronic mail to all the parties. There is nothing to suggest that the Plainti or his counsel were not aware about the delivery of the judgment on that date. Indeed in his own supporting adavit, the Plainti acknowledges that the judgment was delivered on 6th March 2024. This application was led 24th July 2024 after a delay of 4 months and 18 days which, in the circumstances, is unreasonable. No explanation has been oered for that delay. There can be no reason why this Court should exercise its discretion in favour of the Plainti in the absence of any satisfactory explanation for that unreasonable delay. On that ground alone, this application can only be for dismissal. 9. The above notwithstanding, the Court will proceed and consider the main ground on which this application is founded. And that is that this Court may not have noticed that the parties in this case and in Busia ELC Case No 28 of 2013 were dierent. So what the Plainti is stating is that there is “some mistake or error apparent on the face of the record.” The Plainti’s suit was struck out for being res judicata. The Court went on to add that even on it’s merits, the claim for adverse possession with respect to the suit land could not be sustained. From the record, I am not satised that this Court made a mistake by failing to notice that the parties in this case and in Busia ELC Case No 28 of 2013 were dierent. An error or mistake apparent on the face of the record must, as was held in the case of Nyamogo & Nyamogo -v- Kogo 2001 EA 174, must be such an error which “stares one on the face and there could reasonably be no two opinions.” In the case of the judgment herein, this Court stated as follows in paragraph 22. “ Upon perusal of the judgment in Busia ELC Case No 28 of 2013, I conrmed that it involved Pascal Okoth Opondo the defendant herein as the Plainti and Lucas Peter Hainja (who is named in this case as Peter Lucas Hinja) as the 1st defendant. The 2nd defendant was one Nicholas Ombere Obiba and the dispute involved the land parcel NO Bunyala/ bukoma/306 which is the same land subject of this suit. The Plainti in that suit and who is the defendant in this suit, was seeking an order of permanent injunction to restrain the Plainti in this suit and one NICHOLAS OBIBA from the suit land.” It is also clear from the proceedings of 27th July 2023 before Omollo J that when the defendant was cross-examined by MR ASHIOYA, he said: “ It is true that I had led a replying adavit led on 28th August 2013. It is signed by me though not dated. In the said adavit, I have said that I led a case for trespass against the defendant. The case is NO 28 of 2013.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14021/eng@2024-12-11 3

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Further, in the Plainti’s own submissions dated 20th August 2023 and led on 28th August 2023, it is submitted thus: “ The Respondent only mentions land case NO 28 of 2013, we do submit that this case was instituted by the Plainti more than 40 years after the Applicant’s rights as an adverse possessor had accrued, secondly it is worth noting that from the annexed plaint to the Respondent’s adavit, the case was led in Court on the 4th September 2013 seeking orders for eviction of the Applicant herein, yet this instant case was led on the 03 July 2013. It is our submission that, upon the Respondent having been served with summons to enter appearance in this case together with the pleadings, the Respondent, in an attempt to circumvent the ends of justice, rushed and led land case NO 28 of 2013.” It is therefore clear beyond peradventure that the parties herein had also litigated previously in Busia ELC Case No 28 of 2013. The suggestion that this Court may not have noticed that the parties in this case and in Busia ELC Case No 28 of 2013 were dierent is not supported by any tangible evidence. Indeed the parties themselves conrm that they previously litigated in Busia ELC Case No 28 of 2013 and if the parties in that case were dierent, this Court has not been informed either through the submissions or the pleadings who the parties in Busia ELC Case No 28 of 2013 were. As is clear from paragraph 22 of the judgment herein, I called for and perused the le NO Busia ELC Case No 28 of 2013 before concluding that it involved the same parties and subject matter as in this case. 10. The up-shot of all the above is that the Notice of Motion dated 24th July 2024 is devoid of merit. It is dismissed with no orders as to costs since the defendants led his Grounds of Opposition late, without leave and the same have been expunged from the record. BOAZ N. OLAO JUDGE 11TH DECEMBER 2024 RULING DATED, SIGNED AND DELIVERED ON THIS 11TH DAY OF DECEMBER 2024 BY WAY OF ELECTRONIC MAIL WITH NOTICE TO THE PARTIES. BOAZ N. OLAO JUDGE 11TH DECEMBER 2024 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14021/eng@2024-12-11 4

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