Introduction and background
1. On 20.04.2022, the court delivered a ruling (“the Ruling”) finding the Plaintiffs guilty of contempt of court for knowingly and wilfully disobeying the Consent Order dated 21.12.2021 (“the Consent”). The court gave the Plaintiffs an opportunity to purge their contempt by directing them not to interfere with the Defendants’ access to LR No. 28223/33 (“the suit property”) and further held that it was only after the survey was completed that it would sentence them. The court also issued orders of injunction to facilitate the implementation of the Consent.
2. The Plaintiffs have now filed the Notice of Motion dated 26.04.2023 made, inter alia, sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act (Chapter 21 Laws of Kenya) and Order 45 of the Civil Procedure Rules seeking to review and set aside or vary the Ruling. The application is supported by the grounds on its face and the supporting affidavit of the 1st Plaintiff sworn on 26.04.2023. It is opposed by the 4th Defendant (“the Bank”) through the affidavits sworn by its Director, Corporate Banking, Moses Ndirangu on 10.05.2023 and 15.06.2023 and by the Grounds of Opposition dated 10.05.2023. The Plaintiffs have further supplemented their brief oral arguments by filing written submissions.
The Application
3. The Plaintiffs contend that in the Ruling, the court failed to consider that it was common ground that properties Daisy Court 2C1/154 C2/155, C3/156, C4/157, C5/158, C6/159, C7/160, C8/161, Hibiscus Court 4 P2-A 80, 81 and Iris Court 3 P2- C51 all erected on the suit property was part of the 22 housing units which formed the subject of the Consent and the Plaintiffs had paid the entire purchase price for them. That as opposed to the Kshs. 172,700,000.00 as provided for by the Consent, the Plaintiffs had paid Kshs. 205,000,000.00 for the purchase of the 22 units and other units not part of the Consent.
4. The Plaintiffs further state that the Ruling failed to consider that the Defendants had admitted both in their response before the Court and submissions filed in support of the contempt application that the Plaintiffs have since purchased 42 housing units and 2 undeveloped properties which properties are not charged to the Bank. That the court failed to consider that the terms of the Consent only restricted the Plaintiffs from properties that were charged to the Bank and not the properties duly purchased by the Plaintiffs and have been or are in the process of being transferred to the Plaintiffs and as such restricting the Plaintiffs from enjoying the properties duly belonging to them is a grave mistake on the face of the record.
5. The Plaintiffs contend that despite the Court making mention in the Ruling that the Plaintiffs had complied with the terms of the Consent and purchased 19 units therein, it went ahead to order that Daisy Court 201/154 C2/155, C3/156, C4/157, C5/158, C6/159, C7/160, C8/161, Hibiscus Court 4 P2-A 80, 81 and Iris Court 3 P2- C51 all erected on the suit property which are part of the purchased units be repossessed by the receivers of the 1st Defendant occasioning an apparent mistake. They further contend that the court has failed to take note of the fact that the Plaintiffs have continued to pay any outstanding amounts owed to the Bank the latest instalment having been paid in February, 2023 and as such the position at the time of the said decision could possibly not be similar to the position on 26.05.2022 when the contempt application was filed.
6. The Plaintiffs therefore urge that there is an error apparent on the face of the record which error does not require elaborate arguments or explanations that ought to be rectified by the Court. They claim that a letter written by the Defendants’ advocates to the Plaintiffs indicating that the Defendants are in the process of transferring the 21 purchased housing units to the Plaintiffs has since come to the Plaintiffs’ possession after the Ruling was delivered which letter is crucial evidence and could have made the court rule otherwise. That restraining the Plaintiffs from interfering with the survey of the properties known as Land Reference Number 28223/33- C1, C9, C10 and C11 without appreciating that the Plaintiffs have been in possession of the said properties since 1970 and that the 3rd Plaintiff has substantively developed plot C1 and leased out to third parties is an apparent mistake. The Plaintiffs submit that the Ruling is prejudicial as they risk losing their property which the Bank is not even laying claim to.
The Bank’s Reply
7. The Bank opposes the application on the ground that the Plaintiffs have not established grounds for review. It is however amenable to a limited variation of the Ruling in terms of setting aside the injunctive orders with respect to Daisy Court 2C 1/154, C2/155/ C3/156, C4/157, C5/157, C5/158, C6/159, C7/160 and C8/161 and with respect to Hibiscus 80 and 81 upon full payment of the purchase price by the Plaintiffs on or before 30.05.2023.
8. The Bank submits that the application is an abuse of the court process as the Plaintiffs are raising new issues including the allegation that they have been in possession of Land Reference Number 28223/33 C1, C9, C10 and C11 since 1970 and that the 3rd Plaintiff has developed plot C1 and leased it to third parties at the point of making this application. The Bank contends that this directly contradicts the Plaintiffs’ previous position when the contempt application was being heard where they denied the existence of the C-Plots and alleged they could not identify the location of the C-Plots. That the application is an attempt by the Plaintiffs to re-litigate matters that they raised in their application dated 07.07.2022 to set aside the consent judgment of 21.12.2021 and their application dated 21.09.2022 to transfer this suit to the Environment and Land Court which were both dismissed.
9. The Bank states that after the Consent, the Plaintiffs had been making payments for the housing units covered by the Consent which they completed on 08.12.2022 as evidenced by the schedule attached to the further affidavit of Moses Ndirangu sworn on 07.03.2023 in the contempt application dated 26.05.2022. That the schedule indicates that the Plaintiffs completed payments for Daisy Court 2C1/154, C2/155, C3/156, C4/157, C5/158, C6/159, C7/160 and C8/161 after the Bank had filed the application dated 26.05.2022 and that the Plaintiffs have made part payment of the purchase price of Hibiscus 80 and 81 and they continue making periodic payments to settle the balance of the purchase price for these housing units. The Bank contends that the Plaintiffs paid Kshs. 1 million on 15.04.2023 making the total amount paid for these housing units Kshs. 30.1 million and leaving a balance of Kshs. 20.9 million. The Bank thus asserts that the Plaintiffs should conclude making payment of Hibiscus 80 and 81 before claiming ownership of these housing units. It further asserts that the Plaintiffs have not proprietary interest in in Iris 51 as they have not completed payment for it.
Analysis and Determination
10. In order to succeed in an application under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, an applicant is required to show either that there was an error apparent on the face of record or that there has been discovery of new and important matter which was not available despite the exercise of due diligence or for any other sufficient reason for the court to review.
11. The Plaintiffs’ application is anchored on an apparent error on the face of the record and the discovery of new information. The Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 explained what constitutes an error of law apparent on the face of the record and the scope of review:
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. 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.
12. On discovery of new facts or evidence, the Court of Appeal in Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR held as follows:
The motion before the superior court was based on the discovery of new facts. However, it is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed. In the words of the rule itself, it is
“………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…….”
The construction and application of that provision has been discussed in many previous decisions but we shall take it from the commentary by Mulla on similar provisions of the Indian Civil Procedure Code, 15th Edition at page 2726, thus:
“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
13. The Bank has conceded that it is amenable to setting aside the injunction order with respect to Daisy Court 2C 1/154, C2/155/ C3/156, C4/157, C5/157, C5/158, C6/159, C7/160 and C8/161 and Hibiscus 80 and 81 but upon full payment of the purchase price by the Plaintiffs on or before 30.05.2023. I therefore allow the application to that extent.
14. I have reviewed the record and note that in as much as the Plaintiffs claim that they have paid full purchase prices for Hibiscus 80 and 81 and Iris Court 51, the Bank’s position remains that the Plaintiffs are yet to complete payments hence they do not have any proprietary interest in the units. This was also the position adopted by the Court in the Ruling and as such, no review is available on this matter as there is no error apparent on the record. Any challenge on this position can only be by way of appeal. The same can also be said of LR No. 28223/33 — C1, C9, C10 and C11- the C-Plots. I agree with the Bank that the Plaintiffs have taken a contradictory view in this application because previously, they had stated that the C-Plots did not exist and were not expressly provided for as part of the Consent.
Disposition
15. Save to the extent conceded by the Bank, the application dated 26.04.2023 is dismissed with costs. I therefore order that the Ruling dated 20.04.2022 is reviewed to the extent that the injunction in respect of Daisy Court 2C 1/154, C2/155/ C3/156, C4/157, C5/157, C5/158, C6/159, C7/160 and C8/161 is set aside and in respect of Hibiscus 80 and 81, the same will also be set aside but is conditional upon full payment of the purchase price by the Plaintiffs by such time as the parties agree as the date 30.05.2023 has passed.
DATED and DELIVERED at NAIROBI this 17th day of AUGUST 2023.
D. S. MAJANJA
JUDGE