RUTH MAKARANGA VS. SALUM AYUBU CIVIL APPLICATION NO. 363/17 OF 2021

Abstract

1. As a general rule it is the duty of the applicant to lodge with the Court a complete record of the proceedings sought to be revised as stated in the case of Zanair Limited and Another v. Hassan & Sons Ltd, Civil Application No.348/15 of 2017 (unreported). However, the entire record of proceedings of the lower courts are not necessary for the determination of this application revision and therefore non-inclusion is not fatal especially where the decision or order sought to be revised is included.

2. It is trite law that revisional jurisdiction of the Court is exercisable in matters which are not appealable to the Court with or without leave or where the appellate process has been blocked by a judicial process. The Court reinstated the principles in the case of Halais Pro-Chemie v. Wella A. G [1996] T.L.R. 269, Moses Mwakibete v. Editor-Uhuru & Two Others [1995] T.L.R. 134 and Transport Equipment Ltd. v. D.P. Valambhia [1995] T.L.R. 161.

3. The remedy for application for review that has been rejected by the High Court is revision since her right of appeal is blocked by judicial process in terms of XLII Rule 7(1) of the Civil Procedure Code. The Court also reiterated its earlier stance as stated in the case of Bin Kuleb Transport Company Limited v. Registrar of Titles & Three Others, Civil Application No. 522/17 of 2020 (unreported)

4. In terms of Order XLII Rule 1 of the Civil Procedure Code, the Court has power to review its decision on three grounds; one, discovery of new evidence which could not have been produced or come to the party's knowledge after exercise of due diligence; two, some mistake or error apparent on the face of the record or; three, for any sufficient reason.

5. It is a settled law on review that the power of review should not be confused with appellate powers which enables an appellate court to correct all errors committed by the subordinate court.

6. Apparent error on face of record is a self-evident error on the face of the record not involving an examination or arguments to establish it. an error which has to be established by a long-drawn process or arguments and reasoning to establish it on points capable of two opinions cannot qualify to be an error apparent on the face of the record. The Court made reference to it in its decision in the case of Chandrakant Joshubhai Patel v. R [2004] T.L.R. 218, Karim Kiara v. R, Criminal Application No. 4 of 2007 and Epson s/o Michael v. R, Criminal Application No. 5 of 2009 (both unreported)