Waterman Drilling Africa v Nicholas Obuya Koriko & 1 other

e. That costs of the Motion be provided for and be paid personally by Solomon Obiero, Alphonse Wera and Bernard Muok. 2. The application was premised on the grounds that the applicant has a judgment in its favour issued against the County Government of Homa Bay in Homa Bay CMCC No. E061 of 2021 that remains unsatisfied. The applicant further stated that Certificate of Order against the Government as well as a Certificate of Costs against the Government were duly applied for and obtained and served on the judgment debtor, but that no payment has been forthcoming. 3. In the circumstances, the applicant was constrained to file this Judicial Review with a view of compelling compliance by the 1st, 2nd and 3rd respondents. It further averred that judgment was delivered in its favour herein on the 15th December 2022; whereupon an order of Mandamus was granted compelling the County Executive Committee Member for Finance and Fiscal Services (the 2nd respondent herein) to comply with the decree of the subordinate court and pay out to the applicant the sums due as specified in the said order. 4. The applicant explained that, on the 23rd May 2024, the Court delivered a ruling and issued orders in respect of the Notice of Motion dated 11th December 2024, with which it is aggrieved. It contended that there is an error apparent on the face of the record to warrant review of the ruling in that, after allowing the application for Mandamus and granting all the orders sought, the Court proceeded to deny the orders sought in the application as stated in paragraph 10 of the impugned ruling. 5. The applicant contended that it is justified in feeling frustrated because, having allowed the application as stated in paragraph 4 of the decision, the court became functus officio. According to the applicant there was nothing remaining of the Motion and/or any other prayers which could subsequently be denied as stated in paragraph 10 of the decision. In the circumstances, the applicant contended that there is a fundamental error on the face of the record because the court, in effect sat on appeal over its own decision and took back the reliefs it had granted. 6. The applicant further averred that it has no other way of enforcing the judgment of the subordinate court, decree and order for costs, as well as the order of Mandamus granted in its favour on 15th December 2022 unless the orders sought are granted. The applicant also contended that it has other sufficient reasons to warrant review in that it had sought to have the names of the contemnors amended and replaced by the names of the 1st, 2nd and 3rd respondents. It added that it was therefore an error on the part of the Court for it to have stated as it did in paragraph 8 of the impugned decision that the applicant needed to apply for substitution given that Nicholas Obuya Koriko had ceased to hold office and the 1st, 2nd and 3rd respondents were now in office and owed a public duty to the applicant to settle the judgment. 7. The foregoing grounds were expounded on in the applicant’s Supporting Affidavit sworn on 15th January 2025. The applicant opted to rely on a copy of the impugned ruling dated 23rd May 2024 as well as a copy of the Certificate of Order against the County Government of Homa Bay dated 20th August 2023. 8. In response to the application for review, the respondents filed a Replying Affidavit sworn on 4th February 2025 by Mr. Otieno Mboya, the Principal Legal Counsel for the 4th respondent. He gave the factual background of the matter and mentioned that the primary suit proceeded ex parte without service on the 5th respondent as required under Order 5 of the Civil Procedure Rules. He further deposed that even the order of Mandamus was obtained without any notice or reference to the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14019/eng@2025-06-27 2

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9. With regard to the prayer for substitution of the contemnors, the respondents averred that the attempt to amend the Mandamus Order vide the Notice of Motion dated 15th December 2022 which sought the deletion of the name of Nicholas Koriko and replacement thereof with the names of the 1st, 2nd and 3rd respondents, was rejected when that application was dismissed for lack of merits. It was therefore the contention of the respondents that the instant application is utterly misconceived and is an abuse of the process of the Court. 10. The respondents further averred that the 1st, 2nd and 3rd respondents have no power to immediately comply with the court order, being strangers to that order of Mandamus. They added that withdrawals from the County Revenue Fund Account can only be effected under the authority of the Homa Bay County Appropriation Act, 2023, with the approval of the Controller of Budget pursuant to Article 207 of the Constitution and Section 109 of the Public Finance Management Act, 2012. 11. According to the respondents, there is no mistake or error apparent on the face of the record as the Court clearly stated that the applicant had failed to demonstrate refusal to comply with the court order. They quoted the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 and added that if the applicant was dissatisfied with the subject decision it ought to have appealed instead of applying for review. The respondents were also of the posturing that there is unexplained inordinate delay in filing the application and further that the applicant does not stand to suffer any irreparable harm if the orders sought are declined. 12. The application was canvassed by way of written submissions. Counsel for the applicant filed written submissions dated 17th February 2025 in which the applicant reiterated the contents of his affidavit in terms of the factual background of the application. In addition to Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the applicant relied on Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution to anchor its review application. It submitted that unless the orders sought are granted, it will likely end up with a paper judgment not worth the effort made in filing and prosecuting the lower court suit or the previous applications in this judicial review matter. 13. The respondents relied on their written submissions dated 21st February 2025. They proposed the following issues for determination: a. Whether the applicant has demonstrated a glaring error on the face of the record; b. Whether the applicant has given reasons for the delay in filing the application; c. Whether the application meets the threshold for review or setting aside of the impugned ruling. 14. According to the respondents, the applicant was under obligation to demonstrate that there is an error on the face of the record to warrant review. They made reference to paragraphs 7, 8 and 9 of the impugned ruling to support their argument that the ruling was clear enough, namely that the contempt application ought to have been brought against the officers who were under duty to implement the order of Mandamus; yet they were never substituted as parties and were therefore not served to defend the application. 15. The respondents urged the Court to note that the ruling sought to be reviewed was delivered on 23rd May 2024; and that the instant application was not filed until 15th January 2025 without any explanation for the delay. They therefore urged the court to find that the delay is inexcusable. On whether the applicant has met the threshold for review, the respondents submitted that the parties were duly heard before the impugned ruling was delivered; and therefore that the applicant’s recourse ought to have been on appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14019/eng@2025-06-27 3

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16. The respondents underscored the fact that the order of Mandamus was issued against the Chief Finance Officer at the time, one Mr. Nicholas Obuya Koriko in his official capacity; and therefore it would be unfair to cite and punish the 1st, 2nd and 3rd respondents in his place without according them an opportunity of being heard. They further asserted that the contractual sums were fully paid; and therefore there is no disobedience on the part of the respondents. The respondents further submitted that it is unconstitutional for a public officer to be sentenced to imprisonment for a public debt. They accordingly prayed for the dismissal of the application for review with costs. 17. Although the parties made copious averments and submissions on the application extending to extraneous matters, such as whether contempt orders ought to issue against the 1st, 2nd and 3rd respondents, the only valid aspect of the Motion dated 15th January 2025 revolves around the prayers for review of the ruling and orders issued on 23rd May 2024. I will therefore confine myself to that aspect and ignore all the irrelevant assertions made herein by the parties. 18. Section 80 of the Civil Procedure Rules provides that: “ Any person who considers himself aggrieved— 19. 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 fit.” In the same vein, in Order 45 Rule 1 of the Civil Procedure Rules, it is stipulated that: (1) any person considering himself aggrieveda. 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. 20. In the instant application, the applicant contended that there is an error apparent on the face of the record; in that the Court contradicted itself in its ruling dated 23rd May 2024 at paragraphs 4 and 10; and therefore that the dismissal of the contempt application was entirely erroneous. The applicant also contended that there is another sufficient reason for review in that its application for amendment of the order of Mandamus was not given attention. 21. The impugned ruling was delivered by Hon. Kiarie, J. who has since been transferred out of this station. Ordinarily, an application for review ought to be handled by the judge who made the orders sought to be reviewed. However, in the present circumstances that is not feasible. In that event, Order 45 Rule 2 provides that: 1. An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14019/eng@2025-06-27 4

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existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed. 2. 22. 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. It is, therefore, on that basis that I entertained the instant application, notwithstanding that it was brought on the ground that there is some other sufficient reason for review. Accordingly, the issues for determination are: a. Whether the applicant has demonstrated an error apparent on the face of the record to warrant a review; b. Whether there is some other sufficient cause for review; c. What orders ought to issue herein. A. On whether the applicant has demonstrated an error apparent on the face of the record to warrant a review: 23. As was observed in Muyodi v Industrial and Commercial Development Corporation & Another (supra): “ …an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.” 24. The facts of this case have been set out herein above. They are that the applicant obtained a decree from the Chief Magistrate’s Court at Homa Bay in CMCC No. E061 of 2021 against the 5th respondent. The decree was issued on 3rd November 2021 and according to the applicant, the decree remains unpaid to date. In an attempt to compel payment, the applicant applied for and obtained an order of Mandamus on 15th December 2022, directing Mr. Nicholas Obuya Koriko, the then County Executive Member responsible for Finance and the County Government of Homa Bay to pay to the applicant the sum of Kshs. 12,838,984.50, being the sums due in respect of the decree dated 3rd November 2021. 25. The parties are in agreement that even the order of Mandamus was not complied with. Consequently, the applicant filed an application for contempt of court dated 11th December 2023. That application was however dismissed on 23rd May 2024. The learned judge was of the view that the applicant had not demonstrated willful refusal to pay. He also noted, at paragraphs 8, 9 and 10 of the ruling that: “ 8. The 2nd and 3rd respondents were not party to the proceedings. There was a need, therefore, to seek either for substitution or demonstrate that as the new office bearers, they had been served with the orders of the court but refused to act. 9. Whereas the County Government has a duty to pay debts that have been incurred, the applicant has a duty to cite the officers who ought to have implemented the orders and also demonstrate willful disobedience of the court orders. 10. The orders sought cannot, therefore be granted. Each party to bear its costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14019/eng@2025-06-27 5

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26. According to the applicant, paragraph 10 is in direct conflict with the finding of the learned judge at paragraph 4 of the same ruling. That paragraph reads: “ On November 3rd, 2021, he obtained a judgment in his favour, which was reinforced on December 15th, 2022, when I allowed the application dated March 15th, 2022. The ex parte applicant has demonstrated that he has given the respondents reasonable time to comply with and satisfy the decree. However, the respondents have failed to comply. I am satisfied that the applicant has met all eight conditions. I, therefore, grant the orders sought.” 27. The italicized words appear in bold at paragraph 4; and at paragraph 5, the Court noted that the applicant has justification to feel frustrated. It is therefore plain that the italicized words were not part of the learned judge’s findings in respect of the impugned application, but a quotation from the Judgment in respect of the Mandamus application. This is manifest at paragraph 6 of the judgment dated 15th December 2022. 28. In the circumstances, it is mischievous for the applicant to contend that the ruling dated 23rd May 2024 is contradictory at paragraphs 4 and 10 or that the Court clawed back the orders it had issued in favour of the applicant. Therefore, it cannot be validly argued that there is an error apparent on the face of the record. B. On whether there is some other suficient cause for review: 29. At paragraph 21 of the applicant’s written submissions, it pitched the argument that there exist sufficient reasons to warrant review because in prayer 2 of the contempt application, the applicant had specifically sought that the decree and the order of Mandamus dated 15th December 2022 be amended by deleting the name “Nicholas Obuya Koriko” and in its place the names of the 1st, 2nd and 3rd respondents be inserted in their official capacities as public officers of the 4th respondent. Just by that prayer, the applicant premised its argument that it was erroneous for the Court to have stated as it did, in paragraph 8 that the applicant needed to apply for substitution given that Nicholas Obuya Koriko had ceased to hold office, and the three named respondents were now in office and owed a public duty to the applicant to settled the subject judgement. 30. It is plain from the foregoing argument that the applicant was, in effect faulting the merits of the ruling dated 23rd May 2024. Such a posturing is not a valid ground for review. In Nyamogo & Nyamogo Advocates v Kago [2001] 1 EA 173 the Court of Appeal pointed out that: “ ... There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14019/eng@2025-06-27 6

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31. Similarly, in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal had the following to say: “ ... It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be ground for review." 32. The Court of Appeal further stated that: “ ...the learned Judge ... made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the Learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same Court which had adjudicated upon it." 33. And in the case of Pancras T. Swai v. Kenya Breweries Limited [2014] eKLR, the Court of Appeal restated its viewpoint thus: “ ...If parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus officio and have no appellate jurisdiction. The power to review decisions on appeal is vested in appellate courts. Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial court discretionary power to allow review on the three limbs therein stated or "for any sufficient reason." The appellant did not bring his application within any of the limbs nor did he show that there was any sufficient reason for review to be granted..." C. What orders ought to issue herein: 34. In the result, there being no other sufficient reason advanced by the applicants to warrant a review of the ruling and orders of the Court dated 23rd May 2024, it is my considered finding that the Notice of Motion dated 15th January 2025 is utterly devoid of merits. The same is hereby dismissed with costs. It is so ordered. DATED, SIGNED AND DELIVERED AT HOMA BAY THIS 27TH DAY OF JUNE, 2025 SIGNED BY/FOR: HON. LADY JUSTICE OLGA A. SEWE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14019/eng@2025-06-27 7

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