RULING
BRIEF FACTS
The Applicant filed the instant application dated 4th July, 2025 seeking the following orders:
1. Spent.
2. THAT this Honourable Court be pleased to review and set aside the orders of dismissal for want of prosecution issued and reinstate the application for hearing and determination on its merits.
3. Spent.
4. THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue orders of injunction restraining the Respondents, their servants, assigns, agents or anyone acting under them from entering, trespassing or dealing in any way including cutting down trees on land parcel known as NAKURU/KERINGET/BARAGET/713.
5. Spent.
6. THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue conservatory orders restraining the Respondents, their servants, agents, or persons acting for them or on their behalf, from selling, cutting down trees or in any manner interfering with the ownership or possession of the properties on land parcel NAKURU/KERINGET/BARAGET/713.
7. THAT costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of GEORGE PETER BWIRE OGENGO the Applicant.
He stated that he was the registered owner of NAKURU/KERINGET/BARAGET/713 the suit property. He further stated that around 2002 he had planted blue gum trees on the suit parcel and entrusted its care upon his agents. He stated that the court had previously granted status quo orders on 8th April, 2025. He added that the suit was dismissed for want of prosecution due to non-attendance which was inadvertent as a result of miscommunication with his advocates. He stated that since dismissal, the 1st, 2nd and 3rd Respondents have trespassed onto the suit parcel and were in the process of cutting down the trees. He also stated that he had obtained a valid permit dated 21st February, 2024 from the 5th and 6th Respondent. He went on to state that the 1st Respondent had constructed a structure on the suit parcel which housed security guards that bar him from accessing the land parcel. He stated that the ongoing trespass and cutting of trees have caused him significant financial loss and investment. He added that he sought review of the dismissal orders so as to restore the injunctive and conservatory orders that had been granted. He stated that no prejudice will be suffered by the Respondents if the orders sought were granted. He stated that he will suffer irreparable harm if the orders sought are not granted since the Respondents' actions will cause irreversible damage to his property and investment.
.
Response
The 1st Respondent filed its lengthy replying affidavit sworn by the 2nd Defendant one Antony Mwai, its Managing Director. He gave a history of the suit parcel and averred that the official title deed was issued in the 1st Defendant’s name. He averred that that the 1st Defendant has been in actual possession under a lease agreement with the 4th Respondent. He further averred that the 1st Defendant made significant capital investment on the suit parcel aimed at improving its ecological and economic value. He averred that between 2002 and 2003 the 1st Defendant planted large tracts of blue gum trees. He also averred that the Plaintiff never took occupation or cultivated the suit parcel. He averred that the Plaintiff never objected to the transfer of the suit parcel to the 1st Defendant in 2005. He averred that the harvesting permit was fraudulently procured by the Plaintiff and that there was no disclosure to the 6th Respondent.
He further averred that the dispute was previously litigated in Nakuru ELC No. 258 of 2015 which was resolved vide a consent order dated 19th October, 2017. He averred that the consent order affirmed the 1st Defendant’s occupation and that the said order has never been appealed, reviewed or set aside. He went on to aver that the current suit seeks to re-open issues already settled by the consent order thus an abuse of the court process and barred by the doctrine of res-judicata. He averred that the 1st Defendant in 2024 was issued with a harvesting approval by the 6th Respondent. He averred that the Plaintiff stood to suffer no irreparable harm if the injunction was denied since he has not demonstrated any tangible investment on the suit land or any proof of occupation. He urged the court to dismiss the application with costs.
The 1st and 2nd Defendant filed their Grounds of Opposition dated 10th July, 2025 on the following grounds:
1. RES JUDICATA AND BINDING CONSENT ORDER
a) The suit land and trees were the subject of a final consent order in Nakuru ELC No. 258 of 2015, wherein the parties (including the 1st Respondent) agreed to the lawful harvesting of the trees by Kiptagich Tea Factory.
b) The Applicant was not a party to ELC 258 of 2015 but is now attempting to relitigate the same issues. His claims are barred under Section 7 of the Civil Procedure Act.
c) The Applicant’s failure to disclose this consent order in his current filings demonstrates material non-disclosure and disentitles him to equitable relief.
2. FRAUD AND MISREPRESENTATION
a) The Applicant’s title deed (GPBO1) is suspect, as it was issued after the consent order in ELC 258 of 2015 and contradicts the agreed land use.
b) The purported permit (GPBO2) was obtained without disclosing the consent order to the County Government and Kenya Forest Service, rendering it void for fraudulent concealment.
3. LACK OF STANDING TO SEEK REINSTATEMENT
a) The dismissal of the earlier suit was due to the Applicant’s non-attendance, which he attributes to "advocate miscommunication." However, he has not:
i. Attached the dismissal order.
ii. ii. Demonstrated diligence in prosecuting the suit.
4. PUBLIC INTEREST AND ECONOMIC IMPACT
a) The 1st Respondent is a critical economic actor supporting 5,000+ smallholder tea farmers. Stopping the harvest would:
i. Disrupt livelihoods and tea supply chains.
ii. Violate the public interest upheld in the consent order.
b) The Applicant’s 20-year inaction (despite alleged ownership since 1998) undermines his claims of urgency.
5. LEGAL TESTS FOR INJUNCTIONS NOT MET
a) No prima facie case: The Applicant’s ownership is disputed, and his permits are tainted by fraud.
b) No irreparable harm: Damages can compensate any proven loss.
c) Balance of convenience: Favours the Respondents, whose operations are protected by the consent order.
6. The Respondents pray that the Court:
a) Dismiss the Application with costs for being res judicata, abusive, and lacking merit.
b) Declare the Applicant’s permits null and void for nondisclosure.
c) Uphold the consent order in ELC 258 of 2015 as binding.
Submissions
Counsel for the Applicant filed his submissions dated 18th July, 2025 where he identified two issues for determination. He relied on Order 45 rules 1 and 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. He submits that sufficient cause exists for review since the failure to prosecute the earlier application was due to his counsel’s inaction for failure to communicate. He added that the same was not deliberate and that the Applicant has been placed under imminent risk of losing his trees which are his investment thus constituting grave injustice. He relied on the case of Margaret Kamori Karuga & Another V Migwi Kirigi (Miscellaneous Succession Cause 37 of 2012) [2018] KEHC 6885 (KLR). He submits that the Applicant was not aware of the matter and the case was dismissed. He relied on Article 159(2) (d) of the constitution which prioritizes substantive justice. He submits that the Applicant acknowledged that the failure to prosecute was a mistake by his advocate and the same should not be used to penalize his case without it being heard on merit. He urged the court to exercise its discretion to review the dismissal orders and reinstate the application dated 5th April, 2025. He cited the case of Omulele & Tolo Advocates V Mount Holdings Ltd [2018] eKLR and submits that his case fell within the exceptional circumstances that justify the reopening of the matter. He also relied on the case of Philip Chemowolo V Augustine Kubede. He submits that the court in reviewing the dismissal order has an opportunity to correct an injustice and prevent the loss of trees that is critical to the Applicant.
The second issue was whether or not Res Judicata is applicable as claimed by the Respondents. He relied Section 7 of the Civil Procedure Act and submits that the Applicant was not a party to ELC 258 of 2015 or was he aware of the said proceedings. He submits that the Respondents claimed that they entered into a consent to harvest his trees. He argues that the Respondents have been trying to illegally harass the Applicant and harvest his trees. He submits that the Applicant cannot be bound by a consent he neither participated in nor knew of. He also submits that the Respondents have not provided any evidence that ELC 258 of 2015 addressed the Applicant’s title or specific acts of trespass and tree-cutting now before the court. He submits that the Respondents have not demonstrated that the said suit involved the suit property or was determined by a competent court in a manner binding on the Applicant. He added that the Respondents invocation of res judicata was not a defense but a shield to perpetuate their unlawful actions. He argues that the Respondent’s claim of res judicata was a hollow defense failing all three requirements under Section 7 of the Civil Procedure Act. He cited the case of Shah V Mbogo and Nguruman and urged the court to allow the application as prayed.
Counsel for the 1st and 2nd Defendants filed his submissions dated 17th July, 2025 where he identified seven issues for determination. The first issue was whether the Plaintiff has met the legal threshold for the reinstatement of a suit dismissed for non-attendance under Order 12 Rule 7 of the Civil Procedure Rules. He relied on the case of Shah V Mbogo [1967] EA 116 and submits that the Plaintiff has not attached a copy of the dismissal order. He added that there was no explanation from his advocate that explained his failure to attend court. It was his submission that the Plaintiff failed to meet the burden under Order 12 Rule 7 and that the application was defective and bereft of the candor required in applications for reinstatement.
The second issue was whether the Plaintiff’s suit and present application are barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act. He submits in the affirmative and relied on the case of Independent Electoral and Boundaries Commission V Maina Kiai & 5 Others [2017] eKLR. He submits that the present suit involves the same parties, land and trees. He added that the Applicant’s attempt to reframe the issues as new trespass was an attempt to circumvent res judicata. He cited the case of Hirani V Kassam [1952] 19 EACA 131 and submits that a consent judgment had the same effect as a judgment delivered after full trial.
The third issue was whether the court is functus officio in respect of the matters previously determined in ELC No 258 of 2015 and /or the earlier dismissal of this suit. He relied on the case of Telkom Kenya Ltd V John Ochanda (Suing on his own behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR and submits that the consent order conclusively resolved the rights over the trees. He added that dismissal of the suit for non-attendance closed the matter under Order 12 Rule 3 and that the Plaintiff has not met the threshold for reinstatement. He submits that the court is functus officio.
The fourth issue was whether the Plaintiff is guilty of material non-disclosure and bad faith thereby disentitling hum to any equitable or discretionary relief. He relied on the case of Bahadurali Ebrahim Shamji V Al Noor Jamal & 2 Others [2006] eKLR and submits that the Plaintiff did not disclose the existence of the consent order in ELC 258 of 2015. He submits that the ex parte orders obtained on 4th July, 2025 were secured by deception and must be vacated.
The fifth issue as whether the Plaintiff has met the requisite threshold for the grant of injunctive or conservatory orders. He relied on the case of Giella V Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Ltd V Jan Bonde Nielsen & 2 Others [2014] eKLR. It was his submission that the Plaintiff’s title was challenged and that his claim was already compromised by the prior consent. He added that the Respondents faced significant financial loss from the suspension of lawful harvesting including factory closure and lost business.
The sixth issue was whether the interim orders issued exparte on 4th July, 2025 should be discharged or set aside. Counsel submits in the affirmative and argues that the orders cause disproportionate harm to the Respondents. He added that the Respondents suffer irreparable harm which the court should intervene.
The final issue was whether the Plaintiff’s application amounts to an abuse of the court process and should be struck out with costs. While submitting in the affirmative, he relied on the case of Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] and argues that the suit should be struck out with costs.
Analysis and Determination
This court has considered the application and supporting affidavit and grounds of opposition by the 1st and 2nd Respondents and is of the view that the main issue for determination is whether the application is merited.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(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 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.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
The Applicant seeks reinstatement of its application dated 8th April, 2025 which was dismissed for want of prosecution. It was the Applicant’s case that the cause for non-attendance was not intentional since it was due to miscommunication with his advocate. However, the Applicant did not adduce any evidence to prove the same. It is my finding that the Applicant has not met any of the three requirements for review including that of sufficient reason. In the circumstance, I find that the Applicant has not established any reason to warrant review of this court’s orders of 26th June, 2025. The applicant is also guilty of laches in coming to court to set aside the order dismissing the suit for want of prosecution. The application was not filed expeditiously.
I am alive to the fact that setting aside of an ex parte judgment is the discretion of the court and in so doing, such discretion is unfettered but the same should be exercised judiciously and not capriciously – see the case of Kenya Pipeline Company Ltd. (supra) and that of Shah Vs Mbugo (1967) E.A. 166 where the court held that:
“This discretion to set aside as exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it’s not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice. “29”. However, the discretion of the court must always be exercised judiciously with the sole intention of dispensingjustice to both or all the parties. Each case must therefore be evaluated on its unique factsand circumstances. Among the factors to be considered is whether the Applicant will suffer any prejudice if denied an opportunity to be heard on merit.
The applicant has not given sufficient explanation for his, or advocates failure to attend court.
It is not in contention that the matter in ELC 258 of 2015 in as much as it touched on the suit property, the Applicant herein was not a party to the said case. I therefore find that the issue of res judicata cannot apply in the instant case.
The upshot of the foregoing is that the instant application is without merit and the same is dismissed with costs to the Respondents. It is so ordered.
BRIEF FACTS
The Applicant filed the instant application dated 4th July, 2025 seeking the following orders:
1. Spent.
2. THAT this Honourable Court be pleased to review and set aside the orders of dismissal for want of prosecution issued and reinstate the application for hearing and determination on its merits.
3. Spent.
4. THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue orders of injunction restraining the Respondents, their servants, assigns, agents or anyone acting under them from entering, trespassing or dealing in any way including cutting down trees on land parcel known as NAKURU/KERINGET/BARAGET/713.
5. Spent.
6. THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue conservatory orders restraining the Respondents, their servants, agents, or persons acting for them or on their behalf, from selling, cutting down trees or in any manner interfering with the ownership or possession of the properties on land parcel NAKURU/KERINGET/BARAGET/713.
7. THAT costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of GEORGE PETER BWIRE OGENGO the Applicant.
He stated that he was the registered owner of NAKURU/KERINGET/BARAGET/713 the suit property. He further stated that around 2002 he had planted blue gum trees on the suit parcel and entrusted its care upon his agents. He stated that the court had previously granted status quo orders on 8th April, 2025. He added that the suit was dismissed for want of prosecution due to non-attendance which was inadvertent as a result of miscommunication with his advocates. He stated that since dismissal, the 1st, 2nd and 3rd Respondents have trespassed onto the suit parcel and were in the process of cutting down the trees. He also stated that he had obtained a valid permit dated 21st February, 2024 from the 5th and 6th Respondent. He went on to state that the 1st Respondent had constructed a structure on the suit parcel which housed security guards that bar him from accessing the land parcel. He stated that the ongoing trespass and cutting of trees have caused him significant financial loss and investment. He added that he sought review of the dismissal orders so as to restore the injunctive and conservatory orders that had been granted. He stated that no prejudice will be suffered by the Respondents if the orders sought were granted. He stated that he will suffer irreparable harm if the orders sought are not granted since the Respondents' actions will cause irreversible damage to his property and investment.
.
Response
The 1st Respondent filed its lengthy replying affidavit sworn by the 2nd Defendant one Antony Mwai, its Managing Director. He gave a history of the suit parcel and averred that the official title deed was issued in the 1st Defendant’s name. He averred that that the 1st Defendant has been in actual possession under a lease agreement with the 4th Respondent. He further averred that the 1st Defendant made significant capital investment on the suit parcel aimed at improving its ecological and economic value. He averred that between 2002 and 2003 the 1st Defendant planted large tracts of blue gum trees. He also averred that the Plaintiff never took occupation or cultivated the suit parcel. He averred that the Plaintiff never objected to the transfer of the suit parcel to the 1st Defendant in 2005. He averred that the harvesting permit was fraudulently procured by the Plaintiff and that there was no disclosure to the 6th Respondent.
He further averred that the dispute was previously litigated in Nakuru ELC No. 258 of 2015 which was resolved vide a consent order dated 19th October, 2017. He averred that the consent order affirmed the 1st Defendant’s occupation and that the said order has never been appealed, reviewed or set aside. He went on to aver that the current suit seeks to re-open issues already settled by the consent order thus an abuse of the court process and barred by the doctrine of res-judicata. He averred that the 1st Defendant in 2024 was issued with a harvesting approval by the 6th Respondent. He averred that the Plaintiff stood to suffer no irreparable harm if the injunction was denied since he has not demonstrated any tangible investment on the suit land or any proof of occupation. He urged the court to dismiss the application with costs.
The 1st and 2nd Defendant filed their Grounds of Opposition dated 10th July, 2025 on the following grounds:
1. RES JUDICATA AND BINDING CONSENT ORDER
a) The suit land and trees were the subject of a final consent order in Nakuru ELC No. 258 of 2015, wherein the parties (including the 1st Respondent) agreed to the lawful harvesting of the trees by Kiptagich Tea Factory.
b) The Applicant was not a party to ELC 258 of 2015 but is now attempting to relitigate the same issues. His claims are barred under Section 7 of the Civil Procedure Act.
c) The Applicant’s failure to disclose this consent order in his current filings demonstrates material non-disclosure and disentitles him to equitable relief.
2. FRAUD AND MISREPRESENTATION
a) The Applicant’s title deed (GPBO1) is suspect, as it was issued after the consent order in ELC 258 of 2015 and contradicts the agreed land use.
b) The purported permit (GPBO2) was obtained without disclosing the consent order to the County Government and Kenya Forest Service, rendering it void for fraudulent concealment.
3. LACK OF STANDING TO SEEK REINSTATEMENT
a) The dismissal of the earlier suit was due to the Applicant’s non-attendance, which he attributes to "advocate miscommunication." However, he has not:
i. Attached the dismissal order.
ii. ii. Demonstrated diligence in prosecuting the suit.
4. PUBLIC INTEREST AND ECONOMIC IMPACT
a) The 1st Respondent is a critical economic actor supporting 5,000+ smallholder tea farmers. Stopping the harvest would:
i. Disrupt livelihoods and tea supply chains.
ii. Violate the public interest upheld in the consent order.
b) The Applicant’s 20-year inaction (despite alleged ownership since 1998) undermines his claims of urgency.
5. LEGAL TESTS FOR INJUNCTIONS NOT MET
a) No prima facie case: The Applicant’s ownership is disputed, and his permits are tainted by fraud.
b) No irreparable harm: Damages can compensate any proven loss.
c) Balance of convenience: Favours the Respondents, whose operations are protected by the consent order.
6. The Respondents pray that the Court:
a) Dismiss the Application with costs for being res judicata, abusive, and lacking merit.
b) Declare the Applicant’s permits null and void for nondisclosure.
c) Uphold the consent order in ELC 258 of 2015 as binding.
Submissions
Counsel for the Applicant filed his submissions dated 18th July, 2025 where he identified two issues for determination. He relied on Order 45 rules 1 and 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. He submits that sufficient cause exists for review since the failure to prosecute the earlier application was due to his counsel’s inaction for failure to communicate. He added that the same was not deliberate and that the Applicant has been placed under imminent risk of losing his trees which are his investment thus constituting grave injustice. He relied on the case of Margaret Kamori Karuga & Another V Migwi Kirigi (Miscellaneous Succession Cause 37 of 2012) [2018] KEHC 6885 (KLR). He submits that the Applicant was not aware of the matter and the case was dismissed. He relied on Article 159(2) (d) of the constitution which prioritizes substantive justice. He submits that the Applicant acknowledged that the failure to prosecute was a mistake by his advocate and the same should not be used to penalize his case without it being heard on merit. He urged the court to exercise its discretion to review the dismissal orders and reinstate the application dated 5th April, 2025. He cited the case of Omulele & Tolo Advocates V Mount Holdings Ltd [2018] eKLR and submits that his case fell within the exceptional circumstances that justify the reopening of the matter. He also relied on the case of Philip Chemowolo V Augustine Kubede. He submits that the court in reviewing the dismissal order has an opportunity to correct an injustice and prevent the loss of trees that is critical to the Applicant.
The second issue was whether or not Res Judicata is applicable as claimed by the Respondents. He relied Section 7 of the Civil Procedure Act and submits that the Applicant was not a party to ELC 258 of 2015 or was he aware of the said proceedings. He submits that the Respondents claimed that they entered into a consent to harvest his trees. He argues that the Respondents have been trying to illegally harass the Applicant and harvest his trees. He submits that the Applicant cannot be bound by a consent he neither participated in nor knew of. He also submits that the Respondents have not provided any evidence that ELC 258 of 2015 addressed the Applicant’s title or specific acts of trespass and tree-cutting now before the court. He submits that the Respondents have not demonstrated that the said suit involved the suit property or was determined by a competent court in a manner binding on the Applicant. He added that the Respondents invocation of res judicata was not a defense but a shield to perpetuate their unlawful actions. He argues that the Respondent’s claim of res judicata was a hollow defense failing all three requirements under Section 7 of the Civil Procedure Act. He cited the case of Shah V Mbogo and Nguruman and urged the court to allow the application as prayed.
Counsel for the 1st and 2nd Defendants filed his submissions dated 17th July, 2025 where he identified seven issues for determination. The first issue was whether the Plaintiff has met the legal threshold for the reinstatement of a suit dismissed for non-attendance under Order 12 Rule 7 of the Civil Procedure Rules. He relied on the case of Shah V Mbogo [1967] EA 116 and submits that the Plaintiff has not attached a copy of the dismissal order. He added that there was no explanation from his advocate that explained his failure to attend court. It was his submission that the Plaintiff failed to meet the burden under Order 12 Rule 7 and that the application was defective and bereft of the candor required in applications for reinstatement.
The second issue was whether the Plaintiff’s suit and present application are barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act. He submits in the affirmative and relied on the case of Independent Electoral and Boundaries Commission V Maina Kiai & 5 Others [2017] eKLR. He submits that the present suit involves the same parties, land and trees. He added that the Applicant’s attempt to reframe the issues as new trespass was an attempt to circumvent res judicata. He cited the case of Hirani V Kassam [1952] 19 EACA 131 and submits that a consent judgment had the same effect as a judgment delivered after full trial.
The third issue was whether the court is functus officio in respect of the matters previously determined in ELC No 258 of 2015 and /or the earlier dismissal of this suit. He relied on the case of Telkom Kenya Ltd V John Ochanda (Suing on his own behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR and submits that the consent order conclusively resolved the rights over the trees. He added that dismissal of the suit for non-attendance closed the matter under Order 12 Rule 3 and that the Plaintiff has not met the threshold for reinstatement. He submits that the court is functus officio.
The fourth issue was whether the Plaintiff is guilty of material non-disclosure and bad faith thereby disentitling hum to any equitable or discretionary relief. He relied on the case of Bahadurali Ebrahim Shamji V Al Noor Jamal & 2 Others [2006] eKLR and submits that the Plaintiff did not disclose the existence of the consent order in ELC 258 of 2015. He submits that the ex parte orders obtained on 4th July, 2025 were secured by deception and must be vacated.
The fifth issue as whether the Plaintiff has met the requisite threshold for the grant of injunctive or conservatory orders. He relied on the case of Giella V Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Ltd V Jan Bonde Nielsen & 2 Others [2014] eKLR. It was his submission that the Plaintiff’s title was challenged and that his claim was already compromised by the prior consent. He added that the Respondents faced significant financial loss from the suspension of lawful harvesting including factory closure and lost business.
The sixth issue was whether the interim orders issued exparte on 4th July, 2025 should be discharged or set aside. Counsel submits in the affirmative and argues that the orders cause disproportionate harm to the Respondents. He added that the Respondents suffer irreparable harm which the court should intervene.
The final issue was whether the Plaintiff’s application amounts to an abuse of the court process and should be struck out with costs. While submitting in the affirmative, he relied on the case of Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] and argues that the suit should be struck out with costs.
Analysis and Determination
This court has considered the application and supporting affidavit and grounds of opposition by the 1st and 2nd Respondents and is of the view that the main issue for determination is whether the application is merited.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(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 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.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
The Applicant seeks reinstatement of its application dated 8th April, 2025 which was dismissed for want of prosecution. It was the Applicant’s case that the cause for non-attendance was not intentional since it was due to miscommunication with his advocate. However, the Applicant did not adduce any evidence to prove the same. It is my finding that the Applicant has not met any of the three requirements for review including that of sufficient reason. In the circumstance, I find that the Applicant has not established any reason to warrant review of this court’s orders of 26th June, 2025. The applicant is also guilty of laches in coming to court to set aside the order dismissing the suit for want of prosecution. The application was not filed expeditiously.
I am alive to the fact that setting aside of an ex parte judgment is the discretion of the court and in so doing, such discretion is unfettered but the same should be exercised judiciously and not capriciously – see the case of Kenya Pipeline Company Ltd. (supra) and that of Shah Vs Mbugo (1967) E.A. 166 where the court held that:
“This discretion to set aside as exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it’s not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice. “29”. However, the discretion of the court must always be exercised judiciously with the sole intention of dispensingjustice to both or all the parties. Each case must therefore be evaluated on its unique factsand circumstances. Among the factors to be considered is whether the Applicant will suffer any prejudice if denied an opportunity to be heard on merit.
The applicant has not given sufficient explanation for his, or advocates failure to attend court.
It is not in contention that the matter in ELC 258 of 2015 in as much as it touched on the suit property, the Applicant herein was not a party to the said case. I therefore find that the issue of res judicata cannot apply in the instant case.
The upshot of the foregoing is that the instant application is without merit and the same is dismissed with costs to the Respondents. It is so ordered.