Mbarak & 4 others v Mikaya (Civil Appeal E058 of 2021) [2024] KECA 637 (KLR) (7 June 2024) (Judgment)
Neutral citation:
[2024] KECA 637 (KLR)
Republic of Kenya
Civil Appeal E058 of 2021
AK Murgor, KI Laibuta & GV Odunga, JJA
June 7, 2024
Between
Amina Mbarak
1st Appellant
Ibrahim Mbarak
2nd Appellant
Juma Mbarak
3rd Appellant
Salim Mbarak
4th Appellant
Suleiman Mbarak
5th Appellant
and
Rasto Gwiya Mikaya
Respondent
(Being an appeal against the Ruling of the Environment and Land Court at Malindi (J. O. Olola, J.) delivered on 3rd June 2021 in ELC Case No.110 of 2019
Environment & Land Case 110 of 2019
)
Judgment
1.The respondent, Rasto Gwiya Mikaya, filed suit against Charo Ruwa Mwagona and the appellants being Mombasa Civil Case No 453 of 2000. In the suit, the respondent claimed that the Charo Ruwa Mwagona and the 1st appellant were husband and wife, while the 2nd, 3rd, and 4th appellants were their children, and that the 1st appellant and Charo Ruwa Mwagona owned and lived on the suit property Plot No 77 Mutondia Settlement Scheme (the suit property).
2.It was the respondent’s case that he purchased the suit property from the Charo Ruwa Mwagona, by way of a sale agreement dated 12th November 1988 for a consideration of Kshs 12,175, and that the appellants had refused to grant him vacant possession of the property, hence the suit. At the time the suit was heard, Charo Ruwa Mwagona had passed on, and the suit was taken over by his son, the 2nd appellant, Ibrahim Mbarak.
3.On their part, the appellants denied the claim and stated that it was well known to the respondent that Charo Ruwa Mwagona had some mental issues and was hoodwinked into selling him the suit property. They claimed that the respondent fraudulently obtained Charo Ruwa Mwagona’s signature and fraudulently procured transfer of the suit property and that, therefore, the transaction was a nullity. The appellants filed a counterclaim and prayed that the transfer be cancelled and the suit property revert to them.
4.Upon considering the matter, the trial Judge dismissed both the respondent’s suit and the appellants’ counterclaim. The decision prompted the appellants to file a Notice of motion dated 11th July 2019 praying that the court reviews the ruling dated 11th November 2005; that the defence case be reopened and reheard: and that they be allowed to adduce new evidence.
5.The application was brought on the grounds that, since the ruling was delivered, that new and important evidence relating to the suit property, which was not within their knowledge, had been discovered; that it had emerged that the suit property as described in the pleadings at the time of hearing and delivery of the ruling did not exist as it had been sub-divided by the respondent and new titles created before the suit was filed; that, as at the time of institution of the suit, the hearing and delivery of ruling, the respondent did not own the suit property as pleaded in his Plaint; that at the time of the hearing, the new titles sub-divided from the suit property had already been sold to a third party by the respondent, and that the respondent had not disclosed this information to the court; that had a disclosure been made before delivery of ruling, the court would not have arrived at the conclusions reached; that the new evidence was not within the knowledge of the appellants at the time of hearing, and it was only just that the ruling be reviewed and set aside to enable the new evidence to be placed before the court.
6.It was further averred that there was also an error apparent on the face of the record in that, although the court found that the respondent did not legally purchase the suit property from the 1st appellant and had dismissed his case, the court omitted to order for the return of the suit property and title deed to the 1st appellant and that, as a result of this omission, the respondent continued to cling onto the suit property which a court had found was not lawfully acquired by him.
7.The application was opposed. In a replying affidavit sworn on 28th October 2019, the respondent asserted that the ruling was delivered on 11th November 2005, and that no explanation was provided as to why this application was brought after 14 years; that the application was inordinately late and without any reasonable cause; that, further, there was no reason why the defence case should be re-opened and re-heard as there was no new evidence to be adduced; that the sub-division of the suit property was undertaken and separate titles issued in 1999; that, if the appellants had been diligent, they would have conducted a search and confirmed this to be the position.
8.He further contended that the appellants had earlier on filed Malindi ELC No 54 of 2015 raising similar issues, but that the suit was struck out in a Ruling delivered on 15th November 2018; that they have not appealed against the dismissal of their Counterclaim in that case; that, in addition, there was no error apparent on the face of the record, and that the appellants were inordinately late in seeking this correction.
9.In a Ruling dated 3rd June 2021, the trial judge held that the appellants had not adduced sufficient grounds to warrant a review of the decision; that the application was brought 14 years after the ruling and that, they had not provided any reason to explain the delay and, therefore, the application was an abuse of the court process; that the court observed that the appellants had filed a suit in Malindi ELC No 54 of 2015, which was dismissed for being res judicata to this suit and that, in the court’s view, the application for review was an attempt by the appellants to relitigate. The Court proceeded to dismiss the application.
10.Aggrieved by the ruling, the appellants have filed an appeal to this Court on grounds that: the learned Judge was wrong in finding that the appellants had not demonstrated that they had exercised due diligence in the discovery of the new evidence; in finding that the appellants application had not been brought within reasonable time of the discovery of the new and important evidence; in finding and holding that there was no error apparent on the face of the record; and in holding that no sufficient cause had been shown to warrant the review of the ruling.
11.When the appeal came up for hearing on a virtual platform, learned counsel for the appellants, Mr. Shujaa, relied on their submissions in their entirety where it was submitted that the learned Judge did not state whether the application was res judicata in respect of Mombasa HCCC No 453 of 2000 or Malindi ELC Case No 54 of 2015; that no application had been filed in either suit in which the new evidence or error apparent on the record was alleged to have been discovered and determined between the parties prior to the appellants’ Notice of Motion being filed to justify the issue of res judicata being raised.
12.Counsel for the appellants further submitted that there was an error apparent on the face of the ruling because the decision resulted in the parties being placed in the same position as they were before the institution of the suit, which has occasioned a failure of justice.
13.It was submitted that the status quo still exists to date, and that no prejudice would be occasioned to the respondent or to third parties if the application was allowed, and that this was a proper case for the learned Judge to invoke his inherent jurisdiction to correct the injustice by reviewing the ruling and setting it aside with all the consequential orders, and directing that the suit be re-heard afresh.
14.On their part, learned counsel for the respondent, Mr. Odhiambo submitted that the learned Judge rightly found that the appellants' notice of motion was res judicata, frivolous and misconceived; that the learned Judge properly examined and evaluated the application, the replying affidavit and rival submissions, and made a considered and proper ruling; that the appellants did not respond to the respondent's assertion that they failed to carry out any searches or make any effort to establish the changes in the ownership of the parcel of land even after they established that they were no longer the registered owners of the suit property; that the appellants ought to have applied to review or appealed against the ruling soon after it was delivered; that the application was an abuse of the court process, and that the trial Judge rightly dismissed it.
15.This being a first appeal, this Court’s mandate as espoused in the case of Ng’ati Farmers’ Co-operative Society Ltd v Ledidi & 15 others [2009] KLR 331 is that:WhilstIn Peters v Sunday Post Ltd [1958] E.A 424 it was held that:
16.Against these considerations, the main issue for determination is whether the trial Judge was wrong in declining to grant an order for review of its ruling. In addressing this issue, it will be necessary to ascertain whether the application was res judicata; whether there was an error on the face of the record; whether there was discovery of new and important information; whether the appellants’ exercised due diligence; and whether the application was brought without unreasonable delay.
17.The appellant’s application for review was brought under section 80 of the Civil Procedure Act and order 45 Rule 1 of the Civil Procedure Rules, 2010Section 80 provides:
18.In the case of Sanitam Services (E.A.) Limited v Rentokil (K) Limited & another [2019] eKLR, this Court held that:
19.In the case of Njaanake v Wamwea (Civil Appeal E452 of 2022) [2024] KECA 437 (KLR), this Court stated that:
20.The appellants’ application for review brought under order 45 was founded on two main premises. First, on the discovery of new evidence and, secondly, that there was an error on the face of the record. The first premises was that, at the time of institution of the suit and the subsequent hearing and delivery of the ruling, the respondent did not own the suit property described as Title No Kilifi/Mtondia/77 as pleaded in his Plaint; that by the time of the hearing and delivery of ruling, the new titles in respect of the sub-divided portions of the suit property had already been sold to a third party by the respondent, who had failed to disclose this information to the court; that had that disclosure been made before delivery of the ruling, the court would not have arrived at the decision that it did.
21.In the case of D. J. Lowe & Company Ltd v Banque Indosuez, Nairobi Civil Application No 217 of 1998, this Court sounded a caution in such applications and stated that:
22.In the case of Rose Kaiza v Angelo Mpanjuiza [2009] eKLR, this Court cited Mulla’s Commentary on the Indian Civil Procedure Code, 15th Ed. at page 2726 with approval on the extent and limits of review on account of discovery of new evidence. It was held that:
23.For materials to qualify to be new evidence so as to fall within the realm of order 45 rule 1, it must be evidence that was not within the knowledge of the applicant despite their having exercised the necessary due diligence. See Opondo v Rift Valley Railways Ltd (Civil Appeal 5 of 2017) [2023] KECA 170 (KLR).
24.The appellants alleged that the new evidence that they had discovered concerned the extant ownership of the suit property by the time the suit was filed. The respondent has argued that this information was at all times available, and that it could have been obtained by the conduct of a search at the Land Registry at the time of hearing of the suit.
25.With the suit having been filed in the year 2000, and the subdivisions having been registered before that in 1999, it becomes evident that this was material that was at all times available, and the appellants not demonstrated that they made any attempts to obtain the proof of ownership or history of title which was openly available at the Lands Registry. Had they done so, they would have established that neither party to the suit was a registered owner of the suit property. Under these circumstances, we agree with the learned judge that having failed to undertake any due diligence to ascertain the ownership of the title of the suit property whilst the suit persisted, it was too late in the day, and there was no basis upon which the court could grant the review orders sought.
26.Second, as to whether there was an error on the face of the record to justify review of the ruling, the appellants contended that, although the court found that the respondent did not legally purchase the suit property from the 1st appellant and had proceeded to dismiss his case, it omitted to order the return of the suit property and title deed to the 1st appellant and that, as a result, the respondent continued to hold onto the suit property which he was found to have unlawfully acquired.
27.In the case of Nyamogo & Nyamogo v Kogo [2001] EA 170, the court discussing what constitutes an error on the face of the record, rendered itself thus:
28.The Supreme Court in Uganda in the case of Edison Kanyabwera v Pastori Tumwebaze, Supreme Court Civil Appeal No 6 of 2004 held that:
29.As can be discerned from the above excerpts, a challenge to the substantive decision, such as the assertion that the Judge ought to have made a determination on the ultimate fate of the suit property, cannot be undertaken by way of a review, but rather, by way of an appeal. In seeking to have the trial Judge determine the question of ownership of the suit property, the proper recourse was to have appealed against the decision. In effect, the issue raised could not be construed as an error apparent on the face of the record, and the learned judge was right in so finding.
30.On the delay in bringing this application, the last part of order 45 Rule 1(1) (b) is unequivocal that the application for review of the ruling to the court which passed the decree or made the order should be brought “…without unreasonable delay.”
31.The appellants have not addressed the delay in filing the application for review, and neither have they provided any reasons for the delay of 14 years. The delay therefore remained explained. In our view the delay, particularly without an explanation having been provided, was grossly unreasonable. In these circumstances, any orders sought in the face of a delay such as this cannot lie.
32.With regard to the issue of res judicata, indeed, the trial Judge made a finding that the application was res judicata. However, when the ruling is considered, it is true that it does not state against which case the instant application was res judicata, and neither were reasons given for so holding, or the basis on which the decision was arrived at. In the absence of any legal basis upon which we can conclude that the application was res judicata, we find that the trial Judge misdirected himself in finding that the application was res judicata.
33.All in all, we have come to the conclusion that the appeal substantially fails and is hereby dismissed with costs to the respondent.It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 7TH DAY OF JUNE, 2024.A. K. MURGOR.............................JUDGE OF APPEALDR. K. I. LAIBUTA C.Arb, FCIArb..............................JUDGE OF APPEALG. V. ODUNGA.............................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR