' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW CASE NUMBER E131 OF 2022
REPUBLIC………………………………………………………….APPLICANT
VERSUS
NAIROBI METROPOLITAN SERVICES (NMS)………...1 ST RESPONDENT
THE DIRECTOR,
ROADS PUBLIC WORKS & TRANSPORT,NMS……….2 ND RESPONDENT
THE DIRECTOR OF ENFORCEMENT,NMS…………...3 RD RESPONDENT
THE INSPECTOR GENERAL OF POLICE……………...4 TH RESPONDENT
THE DTO,CENTRAL POLICE STATION……………….5 TH RESPONDENT
THE HON.ATTORNEY GENERAL………………………6 TH RESPONDENT
AND
METRO TRANS E.A. LIMITED………………………INTERESTED PARTY
AND
KAKA TRAVELLERS CO-OPERATIVE SAVINGS AND
CREDIT SOCIETY LIMITED…...EX PARTE APPLICANT/RESPONDENT
AND
ROSANA OSCAR OMURWA…………………..CONTEMNOR/APPLICANT
RULING
The Notice of Motion dated 11 th March 2024 and filed on the even date is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Article 51 of the Constitution.
The application seeks that the order extracted by the ex parte applicant and issued by the Court on 2 nd November 2022 be and is hereby expunged. It also seeks that the entire contempt of court proceedings herein, and the ruling dated 23 rd February 2023 on contempt of court be set aside.
The applicant also seeks that the warrants of arrest issued against the applicant contemnor, Rosana Oscar Omurwa, be set aside. Further, that this court does reprimand and or sanction the ex parte applicant for the irregular extraction of the court order issued on 2 nd November 2022.
The application is supported by the affidavit of Rosana Oscar Omurwa sworn on 11 th March 2024.
In his affidavit, Mr. Omurwa deposes that he was not one of the original parties to these proceedings but that he was directly involved in the proceedings for the first time in December 2022 when the ex parte applicant made an application to punish him for alleged contempt of court. It is his case that prior to his direct involvement in the proceedings, he was sometime in November 2022 served with an order dated 1 st November 2022 and issued by the court on 2 nd November 2022.
That following an application dated 8 th December 2022 by the ex parte applicant alleging disobedience of the court order of 1 st November 2022 on the part of the applicant/ contemnor herein, the High Court (Ndungu J) by a ruling delivered on 23 rd February 2023 held him and the Interested Party in contempt of court for disobedience of the order of court issued on 1 st November 2022.
He alleges that both the application dated 8 th December 2022 and the ruling of 23 rd February 2023 referred to the words of the order extracted by the ex parte applicant, and that in particular, order 6 thereof. According to Mr. Omurwa, it is this order that the Interested Party and him were held by the court to have disobeyed. He claims that he has subsequently borne the brunt of the order extracted by the ex parte applicant and the ruling of the court of 23 rd February 2023.
Further, that warrants of arrest have been issued against him and he is currently going through sentencing proceedings. It is his case that his liberty and his property are at risk as he may be imprisoned and/or fined by the court. He states that following a court attendance on 28 th February 2024, which he missed due to illness, he was informed by James Tugee who is a partner at Munyao Muthama & Kashindi Advocates, his advocates on record, that during the court attendance, the ex parte applicant sought an extension of the order of 1 st November 2024, which was objected to by the interested party’s advocates.
He also states that the court directed the parties to file brief submissions on the question of extension of the orders of 1 st November 2022. It is his case that he had also requested his counsel to follow up on a request that had earlier been made by his previous advocates for the typed proceedings to facilitate an intended appeal against the ruling and order dated 20 th December 2023.
The contemnor/applicant further states that his advocates on record by a letter dated 1 st March 2024, made a request for the typed proceedings so as to fully appreciate the history of the proceedings as they had not been involved at all from the inception of the matter in August 2022 to February 2024 when they came on record, to understand the context in which the order of 1 st November 2022 was made, to enable them to prepare submissions on the question of possible extension of the order of 1 st November 2022 which issue came up during the court attendance on 28 th February 2024, as directed by the court, and to also follow up on the request earlier made by his previous advocates, pursuant to his instructions.
The contemnor/ applicant’s counsel is said to have obtained typed and certified proceedings from the court on 8 th March 2024 and that upon perusal of the typed and certified proceedings, counsel noticed that the order extracted by the ex parte applicant and the basis upon which the contempt proceedings were initiated, was irregular. It is the contemnor/applicant’s case that the order was extracted through deceit and or trickery by the said ex parte applicant.
It is claimed further that the said prayer 3 of the chamber summons application dated 29 th August 2022 sought the following specific order:
“THAT leave be granted to the Ex Parte Applicant to seek by way of Judicial Review, that an order of prohibition do issue, prohibiting the Respondents and the Interested Party (Metro Trans E.A. Ltd, or any other party or entity acting at their behest and/or agency), from unlawfully blocking the Ex Parte Applicant’s and its members’ PSV vehicles operating as such PSV along the Githunguri - Nairobi CBD route, access to, from (and at) the Applicant’s designated Tom Mboya slated passenger-picking and dropping off bay, or any other place within their licensed Road Service Licensed (RSL) route.”
Paragraph 6 of the order extracted by the ex parte applicant dated 1 st November 2022 and issued by the court on 2 nd November 2022 is said to read as follows:
“THAT an interim Order of Prohibition be and is hereby issued prohibiting the Respondents and the interested Party (Metro Trans E.A Ltd or any other party or entity acting at their behest and/or agency), from unlawfully blocking the ex-Parte Applicant''s and its members’ PSV vehicles operating as such PSVs along Githunguri-Nairobi CBD route, access to, from (and at) the Applicant''s designated Tom Mboya Street slated Passenger picking-up and drop off bay or any other place within their licensed Road Service Licensed (RSL) route pending further Orders of this Court.”
It is asserted that the order granted by the Court was deliberately changed by omission of part of Prayer 3 of the Chamber Summons dated 29 th August 2022 with the result that the meaning and effect of the order granted by the Court was altered to grant an undue benefit to the ex parte applicant. Mr. Omurwa argues that he knows that the ex parte applicant is fighting him and the interested party which is a company which he used to be a director.
Further, that the ex parte applicant is keen to ensure that the interested party does not operate on the Nairobi–Kiambu route and that the exparte applicant remains the sole PSV operators on that route. He asserts that he is suffering all this harm and damage due to business rivalry between the ex parte applicant and the interested party.
It is the contemnor’s/applicant’s case that the contempt application by the ex parte applicant, the contempt proceedings, the ruling holding him and the interested party in contempt, warrants of arrest issued against him and the subsequent sentencing sessions are all irregular and manifestly unjust as they are based on a court order obtained irregularly through deceit, connivance and trickery and ought to be stayed, set aside, discharged, lifted, revoked and or varied. He depones that he has been terrorised by warrants of arrest, with the police seeking to arrest him.
It is also his case that the ex parte applicant applied for an order and the Court directed that he be attending Court regularly, and this has caused him prejudice since he has to physically be present in court even though he is represented by an advocate. The contemnor prays for a reversal of the contempt order and also seeks that his name be struck out of these proceedings as he has not done anything to warrant him to be included in the proceedings.
He further argues that any issues that the ex parte applicant and the interested party have can be best resolved between themselves without victimising him. He also seeks that the Court looks into the matter keenly and establishes how the irregular order was extracted. It is his request that the court to, after carefully considering the matter, punish all persons who are guilty of generating the irregular order and inflicting harm on him.
The contemnor filed two sets of submissions, one is dated 1 st July 2024 but erroneously titled notice of motion and, the other is dated 29 th September 2025.
In the submissions, the contemnor/ applicant submits that the order granted by the Court was deliberately changed by omission of part of Prayer 3 of the Chamber Summons dated 29 th August 2022 with the result that the meaning and effect of the order granted by the Court was altered to grant an undue benefit to the ex parte applicant.
It is submitted that under section 3A of the Civil Procedure Act, nothing shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the court.
Mr. Omurwa’s application is brought under, inter alia, Order 45 Rule 1 of the Civil Procedure Rules which provides for the instances where a party may apply for the review of a decree, judgment, order, or ruling.
The contemnor/applicant further submits that Order 45 Rule 1 of the Civil Procedure Rules which provides for review is, inter alia , an acknowledgement that human beings even courts or judges are fallible and can therefore make mistakes. He relies on the Court of Appeal decision in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR where the court is said to have held that the essence of review lies in recognizing human fallibility and the potential for error or bias that may result in a miscarriage of justice.
On the error apparent on the face of the record, he relies on the case of Zablon Mokua v Solomon M. Choti & 3 others [2016] eKLR , where the High Court is said to have allowed an application for review and cited with approval the holding in National Bank of Kenya Ltd v Ndungu Njau where according to the contemnor, the court held that a review will be granted where it is necessary to correct a clear and self-evident error or omission by the court, one that is obvious on the record and does not call for detailed argument to establish.
The contemnor/applicant submits that in this case, the error or mistake is self-evident on the face of the record itself as the ruling of 23 rd February 2023 which held him in contempt of court cited the wording of the irregular or erroneous order issued on 2 nd November 2022 as opposed to the correct/actual order made on 1 st November 2022. This mistake, it is submitted, is not one that requires any long-drawn argument, as the order made by the court on 1 st November 2022 clearly referred to “prayer 3 in the chamber summons application dated 29 th August 2022 which wording is easily ascertainable.
It is submitted that to the extent that the court relied on the irregular/erroneous order to hold Mr. Omurwa in contempt of court, there is an error apparent on the face of the record which constitutes a proper ground for review.
Also, that Mr. Omurwa, who was not a party or present when the order of 1 st November 2022 was made, relied in good faith, on what appeared to be a valid court order served upon him. That he only later discovered, through his new advocates upon obtaining the typed proceedings on 8 th March 2024, that the order issued on 2 nd November 2022 differed from the one actually made by the court, constituting new and material evidence not previously within his knowledge.
That where an application for review is based on the ground that there is sufficient reason for such review, the court is called upon to exercise its discretion, and to support this position the alleged contemnor relies on the case of Republic v Cabinet Secretary for Interior and Co-Ordination of National Government ex parte Abullahi Said Said [2019] eKLR .
It is argued that such sufficient reason for review need not be analogous to the grounds for review that are specifically stated at Order 45 Rule 1 of the Civil Procedure Rules. This, according to him, is as was held by the Court of Appeal in Wangechi Kimita vs. Wakibiru Mutahi [1985] eKLR where Nyarangi JA (as he then was) is said to have stated that the phrase “any other sufficient reason” under section 80 of the Civil Procedure Act is not limited to grounds similar to those expressly listed, as the provision grants the court broad discretion to review its decisions on any justifiable basis.
It is submitted that in addition to the fact that there is an error apparent on the face of the record and discovery of new and important evidence, there are also additional sufficient reasons for review of the ruling and order of 23 rd February 2023, including the need to correct the injustice that the ruling, which was based on an irregular/erroneous order, has visited upon the contemnor/applicant herein.
He further states that the fact that a failure to review the ruling and set aside the order will expose him to punishment by the court for disobedience of an order that was irregularly extracted and obtained, and whose wording does not reflect the actual order made by the court.
It is also submitted that it would be absurd for the court to decline to review and set aside a ruling that quotes and is based on the alleged disobedience of an order that was not in fact made by the court.
The contemnor/applicant submits that court orders indicate the date on which they were made or pronounced and the date on which they were issued by the court and these dates are often different. Further, that the order made by the court on 1 st November 2022 is not the order that was subsequently extracted and issued by the court on 2 nd November 2022.
He further submits that he has no issue whatsoever with the order that was made by the court on 1 st November 2022, his issue is with the erroneous version of the order that was irregularly extracted and issued by the court on 2 nd November 2022.
On whether or not his application is res judicata, the contemnor/applicant submits that the same is not as no previous application had been made by him based on the same issue(s) and also, that none of the previous applications referred to by the ex parte applicant in the grounds of objection and the replying affidavit relate to the same order, the basis of the application of 11 th March 2025.
Additionally, that even more importantly, this court has wide powers and discretion under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to review its previous decisions, which powers and discretion of the court have been properly invoked by him in addition to invoking the court’s inherent jurisdiction to make orders for the ends of justice.
To support this position, the contemnor/ applicant relies on the case of Zablon Mokua v Solomon M. Choti & 3 others [2016] eKLR , where the High Court is said to have allowed an application for review and cited with approval the holding in National Bank of Kenya Ltd v Ndungu Njau , where the court is said to have observed that 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. It is argued that the ex parte applicant has therefore failed to demonstrate that his application is res judicata .
On the issue of a notice of appeal having already been filed, it is submitted that this contention is wrong both factually and legally as from a factual perspective, the contemnor/applicant’s notice of appeal relates to the order made by the Court on 20 th December 2023 while the present application relates to the erroneous order issued by the court on 2 nd November 2022. It is submitted that there is no notice of appeal filed against the order issued on 2 nd November 2022.
It is also the contemnor/applicant’s case that a notice of appeal is merely an expression of intent and does not amount to filing an appeal. Further, that under Section 80 of the Civil Procedure Rules, the right to seek review is only barred once an actual appeal has been filed. Therefore, that even if a notice of appeal had been lodged against the orders in question, a review would still be competent. He relies on the case of Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & Others [2020] KECA 633 (KLR) , where the Court of Appeal is said to have affirmed that a notice of appeal does not constitute an appeal and does not oust the High Court’s jurisdiction to hear a review application.
It is submitted that no evidence of an appeal in the Court of Appeal has been presented, and that indeed, no appeal has been filed by the contemnor/applicant or any other party emanating from this matter.
The contemnor submits that the ex parte applicant similarly complains about an application for stay of proceedings in this matter filed in the Court of Appeal, being Nairobi Court of Appeal Civil Application No. E081 of 2024 Rosana Oscar Omurwa v Kaka Travellers Co-operative Savings and Credit Society Limited . It is submitted that firstly, the application in the Court of Appeal was filed purely to preserve the subject matter of the intended appeal against this Court’s ruling and order of 20 th December 2023, and that the present application before this Court does not relate to the ruling and order of 20 th December 2023 but the erroneous order issued on 2 nd November 2022.
The contemnor/applicant argues that both the High Court and the Court of Appeal have power to stay proceedings where necessary to prevent a matter from being rendered moot. He explains that the stay sought before the Court of Appeal was to enable him to pursue an intended appeal against the ruling of 20 th December 2023, while the stay sought before this Court concerns the contempt proceedings pending determination of his application to correct the erroneous order of 2 nd November 2022.
He further states that the Court of Appeal application was filed before the discovery, upon obtaining certified proceedings on 8 th March 2024, that the order extracted on 2 nd November 2022 was fictitious and did not reflect the actual order made on 1 st November 2022.
Accordingly, he maintains that there is no overlap between the two applications and that the ex parte applicant has failed to prove otherwise, having not produced the alleged Court of Appeal application. Finally, he submits that it is illogical to suggest that he is estopped from challenging the erroneous order merely because he initially believed it to be proper, since estoppel cannot validate a non-existent order; an order never made by the court must be set aside ex debito justitiae.
Response
Opposing the application for review, the ex parte applicant contends that the contemnor’s/applicant’s motion dated 11 th March 2024 is res judicata , having already been determined through several prior applications. It is argued that the contemnor had previously opposed the contempt application by a replying affidavit sworn on 15 th December 2022, which application was ruled upon on 23 rd February 2023, yet he did not then challenge the order of 1 st November 2022. Further, that he filed similar applications on 3 rd March 2023 and 11 th October 2023, both of which were dismissed, and that therefore, the present motion is therefore a fourth attempt to re-litigate the same issues.
The ex parte applicant maintains that the application is incompetent and without merit , as the court has already declared Mr. Omurwa guilty of contempt of court by an order of 23 rd February 2023, which remains in force and has not been set aside or been appealed against. It is further argued that the motion is a backdoor attempt to delay or obstruct enforcement of the contempt order in violation of the constitutional principle of the rule of law, and that the grounds raised properly belong to an appeal, not a review, which this court lacks jurisdiction to entertain.
The ex parte applicant contends that the contemnor’s motion dated 11 th March 2024 improperly seeks review of this Court’s order of 23 rd February 2023, which found him guilty of contempt and led to his being sentenced by Justice Chigiti SC, disguised as an application to set aside the order of 1 st November 2022. They argue that the motion is frivolous, vexatious and an abuse of process, since the contemnor has already exhausted the available avenues for review and has filed a notice of appeal, thereby barring him from invoking the court’s review jurisdiction under Section 80 of the Civil Procedure Act.
It is further submitted that the contemnor applicant herein has a pending application before the Court of Appeal seeking a stay of his sentencing, which demonstrates that this application duplicates the same issues and amounts to abuse of process. The ex parte applicant adds that the motion is incompetent, as the sentencing order remains lawful and unchallenged, and that the contemnor is estopped under Section 120 of the Evidence Act from denying or resiling from his acceptance of the order of 1 st November 2022. Finally, it is contended that no unlawful or erroneous order was extracted on 2 nd November 2022, as alleged.
The ex parte applicant argues that the contemnor’s motion dated 11 th March 2024 is grossly incompetent because it refers to a non-existent order allegedly made on 2 nd November 2022, whereas the valid order was issued on 1 st November 2022. The motion is said to be a misuse of the review process and a disguised attempt to revisit matters already determined, including the contempt finding and subsequent sentencing. The ex parte applicant maintains that the contemnor has already exhausted all review avenues , including the filing of a notice of appeal , and that he therefore cannot invoke review jurisdiction under Section 80 of the Civil Procedure Act. The application is described as frivolous, vexatious, and a gross abuse of court process , intended to delay enforcement of existing court orders.
The ex parte applicant contends that the contemnor’s Motion dated 11 th March 2024 is a misuse of the court process, filed despite a pending Court of Appeal application (Civil Application No. E081 of 2024) seeking to stay his sentencing. It is argued that the motion improperly targets a non-existent order of 2 nd November 2022, while the genuine orders of 1 st and 21 st November 2022 issued and reaffirmed by A.K. Ndung’u J remain valid and enforceable. The ex parte applicant insists that no unlawful order was extracted and that court orders are prepared by the Registrar’s office, not by the parties, under post–Covid-19 procedures.
The exparte applicant maintains that the contemnor has shown acquiescence to the valid orders and is estopped from denying them, yet continues to breach the same orders by facilitating the operations of Metro Trans E.A. Ltd along Tom Mboya Street, contrary to express court prohibitions. This ongoing defiance has allegedly disrupted the ex parte applicant’s PSV operations, undermined the authority and dignity of the court, and brought its orders into public disrepute.
The ex parte applicant therefore urges that the contemnor’s motion be dismissed, that he be committed to civil jail for persistent disobedience, and that the court uphold its authority under Article 27(1) of the Constitution and Rule 39 of the High Court (Organization and Administration) (General) Rules to punish contempt and protect lawful court orders.
The ex parte applicant also filed written submissions dated 30 th April 2025. In the submissions it is urged that the Motion dated 11 th March, 2024 is incompetently before the Court as the Court issued an order for the sentencing of the contemnor, which has also not been set aside and hence the Applicant cannot by his motion seek to stay that which is lawful.
It is also submitted that Mr. Omurwa is guilty of acquiescence and his conduct amounts to estoppel, and that pursuant to Section 120 of the Evidence Act, he cannot resile from his acceptance of the Order of 1 st November, 2022 herein issued and never set aside.
The ex parte applicant relies on Mulla, Code of Civil Procedure 18 th Ed. 2012, at p.293 where according to the ex parte applicant, it is stated that the doctrine of res judicata ensures finality in litigation by preventing parties from repeatedly relitigating issues already determined by a competent court, thereby safeguarding judicial time, resources, and the integrity of the justice system.
The exparte Applicant also relies on the cases of In The Independent Electoral and Boundaries Commission vs. Maina Kiai &5 Others [2017] eKLR and Siri Ram Kaura v M.J.LE. Morgan, CA 71/1960 (1961) EA 462 where the court is said to have observed that the principle of res judicata bars a party who has lost a case from reopening the same litigation merely by introducing additional or similar facts, unless such new facts fundamentally change the case and could not have been discovered earlier with reasonable diligence, thereby preventing parties from evading the doctrine by rephrasing issues or adding new parties.
The ex parte applicant relies on several other cases where the courts have addressed the doctrine of res judicata and these include ET vs. Attorney General & Another (2012) eKLR, Pop In (K) Ltd & 3 others & Habib Bank Zurich Civil Appeal No 80 of 1988 [1990] KLR 609 , Omondi v National Bank of Kenya Limited and others (2001); EA 177, Nancy Mwangi T/A Worthlin Marketers vs. Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 others [2014] eKLR, Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR ,Lotta v Tanaki [2003] 2 EA 556 and Gurbachan Singh Kalsi v Yowani Ekori Civil Appeal No 62 of 1958[1958] EA 450 .
The ex parte applicant contends that after repeatedly changing advocates from Mukami Law to Marube Law vide a Notice of Change of Advocates dated 3 rd November, 2023 and filing multiple similar applications challenging the same contempt order of 23 rd February 2023 all of which were dismissed and that the applicant has now filed the motion dated 11 th March 2024 in an attempt to re-litigate matters already determined, despite having filed a notice and pending appeal before the Court of Appeal, rendering the motion incompetent, frivolous, and an abuse of the court process.
Further reliance is placed on Gab International Construction Co; Ltd v Zachary Kabucho Ndungu (Civil Appeal E032 of 2022) [2023] KEHC 17549(KLR) (19 th May 2023) (Judgment) where the court is said to have held that the appellant’s appeal was bound to fail because having chosen to seek a review of the trial court’s ruling instead of appealing, the appellant could not later file an appeal over the same decision, as doing so constituted an abuse of the court process.
The ex parte applicant submits that at any rate, the contemnor/Applicant is guilty of acquiescence and his conduct amounts to estoppel, and hence he cannot resile from his acceptance of the order of 1 st November, 2022 herein issued and which he has never set aside. Reliance is placed in the case of Kenya Commercial Bank v M’Mionki (Environment and Land Appeal 1 of 2024) [2024] KEELC 5782 (KLR) (24 July 2024) (Judgment) , where the court is said to have held that the doctrines of estoppel and waiver prevent a party from asserting a right they knowingly chose to forgo, as affirmed in Serah Njeri Mwobi vs. John Kimani Njoroge [2013] eKLR and Seascapes Ltd vs. Development Finance Co. (K) Ltd, Civil Appeal No. 247 of 2001 .
The ex parte applicant further relies on the holding in the English case , Pickard v Sears 112 E.R. 179 where Lord Denman C is said to have crystallized the doctrine of estoppel.
The ex parte applicant submits that from his conduct in these proceedings, Mr. Omurwa has not been prejudiced in any manner by the processes of the Court effecting and demanding obedience of the Order of 1 st November, 2022 and affirmed again on 22 nd November 2022 with his full participation.
It is submitted that no step of the proceedings has been vitiated at all. Further, that Mr. Omurwa stands bound by his conduct in the proceedings through active and uninhibited, unconditional participation, in the issues relating to the enforcement of the order of 1 st November, 2022 amounting to estoppel by conduct.
The ex parte Applicant also relies on the Court of Appeal decision in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR where the court is said to have held that the doctrine of estoppel bars a person from denying or contradicting what their previous actions or statements have implied.
The ex parte applicant argues that having fully participated in the proceedings leading to the order of 1 st November 2022, Oscar Rosana Omurwa is estopped from claiming prejudice, as the order was properly drawn by the Court’s Deputy Registrar under the current procedure, and that therefore, his motion of 11 th March 2024 should be dismissed, the contempt order enforced and the contemnor committed to civil jail for non-compliance.
It is also submitted that the motion dated 11 th March, 2024 must fail and reliance i
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW CASE NUMBER E131 OF 2022
REPUBLIC………………………………………………………….APPLICANT
VERSUS
NAIROBI METROPOLITAN SERVICES (NMS)………...1 ST RESPONDENT
THE DIRECTOR,
ROADS PUBLIC WORKS & TRANSPORT,NMS……….2 ND RESPONDENT
THE DIRECTOR OF ENFORCEMENT,NMS…………...3 RD RESPONDENT
THE INSPECTOR GENERAL OF POLICE……………...4 TH RESPONDENT
THE DTO,CENTRAL POLICE STATION……………….5 TH RESPONDENT
THE HON.ATTORNEY GENERAL………………………6 TH RESPONDENT
AND
METRO TRANS E.A. LIMITED………………………INTERESTED PARTY
AND
KAKA TRAVELLERS CO-OPERATIVE SAVINGS AND
CREDIT SOCIETY LIMITED…...EX PARTE APPLICANT/RESPONDENT
AND
ROSANA OSCAR OMURWA…………………..CONTEMNOR/APPLICANT
RULING
The Notice of Motion dated 11 th March 2024 and filed on the even date is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Article 51 of the Constitution.
The application seeks that the order extracted by the ex parte applicant and issued by the Court on 2 nd November 2022 be and is hereby expunged. It also seeks that the entire contempt of court proceedings herein, and the ruling dated 23 rd February 2023 on contempt of court be set aside.
The applicant also seeks that the warrants of arrest issued against the applicant contemnor, Rosana Oscar Omurwa, be set aside. Further, that this court does reprimand and or sanction the ex parte applicant for the irregular extraction of the court order issued on 2 nd November 2022.
The application is supported by the affidavit of Rosana Oscar Omurwa sworn on 11 th March 2024.
In his affidavit, Mr. Omurwa deposes that he was not one of the original parties to these proceedings but that he was directly involved in the proceedings for the first time in December 2022 when the ex parte applicant made an application to punish him for alleged contempt of court. It is his case that prior to his direct involvement in the proceedings, he was sometime in November 2022 served with an order dated 1 st November 2022 and issued by the court on 2 nd November 2022.
That following an application dated 8 th December 2022 by the ex parte applicant alleging disobedience of the court order of 1 st November 2022 on the part of the applicant/ contemnor herein, the High Court (Ndungu J) by a ruling delivered on 23 rd February 2023 held him and the Interested Party in contempt of court for disobedience of the order of court issued on 1 st November 2022.
He alleges that both the application dated 8 th December 2022 and the ruling of 23 rd February 2023 referred to the words of the order extracted by the ex parte applicant, and that in particular, order 6 thereof. According to Mr. Omurwa, it is this order that the Interested Party and him were held by the court to have disobeyed. He claims that he has subsequently borne the brunt of the order extracted by the ex parte applicant and the ruling of the court of 23 rd February 2023.
Further, that warrants of arrest have been issued against him and he is currently going through sentencing proceedings. It is his case that his liberty and his property are at risk as he may be imprisoned and/or fined by the court. He states that following a court attendance on 28 th February 2024, which he missed due to illness, he was informed by James Tugee who is a partner at Munyao Muthama & Kashindi Advocates, his advocates on record, that during the court attendance, the ex parte applicant sought an extension of the order of 1 st November 2024, which was objected to by the interested party’s advocates.
He also states that the court directed the parties to file brief submissions on the question of extension of the orders of 1 st November 2022. It is his case that he had also requested his counsel to follow up on a request that had earlier been made by his previous advocates for the typed proceedings to facilitate an intended appeal against the ruling and order dated 20 th December 2023.
The contemnor/applicant further states that his advocates on record by a letter dated 1 st March 2024, made a request for the typed proceedings so as to fully appreciate the history of the proceedings as they had not been involved at all from the inception of the matter in August 2022 to February 2024 when they came on record, to understand the context in which the order of 1 st November 2022 was made, to enable them to prepare submissions on the question of possible extension of the order of 1 st November 2022 which issue came up during the court attendance on 28 th February 2024, as directed by the court, and to also follow up on the request earlier made by his previous advocates, pursuant to his instructions.
The contemnor/ applicant’s counsel is said to have obtained typed and certified proceedings from the court on 8 th March 2024 and that upon perusal of the typed and certified proceedings, counsel noticed that the order extracted by the ex parte applicant and the basis upon which the contempt proceedings were initiated, was irregular. It is the contemnor/applicant’s case that the order was extracted through deceit and or trickery by the said ex parte applicant.
It is claimed further that the said prayer 3 of the chamber summons application dated 29 th August 2022 sought the following specific order:
“THAT leave be granted to the Ex Parte Applicant to seek by way of Judicial Review, that an order of prohibition do issue, prohibiting the Respondents and the Interested Party (Metro Trans E.A. Ltd, or any other party or entity acting at their behest and/or agency), from unlawfully blocking the Ex Parte Applicant’s and its members’ PSV vehicles operating as such PSV along the Githunguri - Nairobi CBD route, access to, from (and at) the Applicant’s designated Tom Mboya slated passenger-picking and dropping off bay, or any other place within their licensed Road Service Licensed (RSL) route.”
Paragraph 6 of the order extracted by the ex parte applicant dated 1 st November 2022 and issued by the court on 2 nd November 2022 is said to read as follows:
“THAT an interim Order of Prohibition be and is hereby issued prohibiting the Respondents and the interested Party (Metro Trans E.A Ltd or any other party or entity acting at their behest and/or agency), from unlawfully blocking the ex-Parte Applicant''s and its members’ PSV vehicles operating as such PSVs along Githunguri-Nairobi CBD route, access to, from (and at) the Applicant''s designated Tom Mboya Street slated Passenger picking-up and drop off bay or any other place within their licensed Road Service Licensed (RSL) route pending further Orders of this Court.”
It is asserted that the order granted by the Court was deliberately changed by omission of part of Prayer 3 of the Chamber Summons dated 29 th August 2022 with the result that the meaning and effect of the order granted by the Court was altered to grant an undue benefit to the ex parte applicant. Mr. Omurwa argues that he knows that the ex parte applicant is fighting him and the interested party which is a company which he used to be a director.
Further, that the ex parte applicant is keen to ensure that the interested party does not operate on the Nairobi–Kiambu route and that the exparte applicant remains the sole PSV operators on that route. He asserts that he is suffering all this harm and damage due to business rivalry between the ex parte applicant and the interested party.
It is the contemnor’s/applicant’s case that the contempt application by the ex parte applicant, the contempt proceedings, the ruling holding him and the interested party in contempt, warrants of arrest issued against him and the subsequent sentencing sessions are all irregular and manifestly unjust as they are based on a court order obtained irregularly through deceit, connivance and trickery and ought to be stayed, set aside, discharged, lifted, revoked and or varied. He depones that he has been terrorised by warrants of arrest, with the police seeking to arrest him.
It is also his case that the ex parte applicant applied for an order and the Court directed that he be attending Court regularly, and this has caused him prejudice since he has to physically be present in court even though he is represented by an advocate. The contemnor prays for a reversal of the contempt order and also seeks that his name be struck out of these proceedings as he has not done anything to warrant him to be included in the proceedings.
He further argues that any issues that the ex parte applicant and the interested party have can be best resolved between themselves without victimising him. He also seeks that the Court looks into the matter keenly and establishes how the irregular order was extracted. It is his request that the court to, after carefully considering the matter, punish all persons who are guilty of generating the irregular order and inflicting harm on him.
The contemnor filed two sets of submissions, one is dated 1 st July 2024 but erroneously titled notice of motion and, the other is dated 29 th September 2025.
In the submissions, the contemnor/ applicant submits that the order granted by the Court was deliberately changed by omission of part of Prayer 3 of the Chamber Summons dated 29 th August 2022 with the result that the meaning and effect of the order granted by the Court was altered to grant an undue benefit to the ex parte applicant.
It is submitted that under section 3A of the Civil Procedure Act, nothing shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the court.
Mr. Omurwa’s application is brought under, inter alia, Order 45 Rule 1 of the Civil Procedure Rules which provides for the instances where a party may apply for the review of a decree, judgment, order, or ruling.
The contemnor/applicant further submits that Order 45 Rule 1 of the Civil Procedure Rules which provides for review is, inter alia , an acknowledgement that human beings even courts or judges are fallible and can therefore make mistakes. He relies on the Court of Appeal decision in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR where the court is said to have held that the essence of review lies in recognizing human fallibility and the potential for error or bias that may result in a miscarriage of justice.
On the error apparent on the face of the record, he relies on the case of Zablon Mokua v Solomon M. Choti & 3 others [2016] eKLR , where the High Court is said to have allowed an application for review and cited with approval the holding in National Bank of Kenya Ltd v Ndungu Njau where according to the contemnor, the court held that a review will be granted where it is necessary to correct a clear and self-evident error or omission by the court, one that is obvious on the record and does not call for detailed argument to establish.
The contemnor/applicant submits that in this case, the error or mistake is self-evident on the face of the record itself as the ruling of 23 rd February 2023 which held him in contempt of court cited the wording of the irregular or erroneous order issued on 2 nd November 2022 as opposed to the correct/actual order made on 1 st November 2022. This mistake, it is submitted, is not one that requires any long-drawn argument, as the order made by the court on 1 st November 2022 clearly referred to “prayer 3 in the chamber summons application dated 29 th August 2022 which wording is easily ascertainable.
It is submitted that to the extent that the court relied on the irregular/erroneous order to hold Mr. Omurwa in contempt of court, there is an error apparent on the face of the record which constitutes a proper ground for review.
Also, that Mr. Omurwa, who was not a party or present when the order of 1 st November 2022 was made, relied in good faith, on what appeared to be a valid court order served upon him. That he only later discovered, through his new advocates upon obtaining the typed proceedings on 8 th March 2024, that the order issued on 2 nd November 2022 differed from the one actually made by the court, constituting new and material evidence not previously within his knowledge.
That where an application for review is based on the ground that there is sufficient reason for such review, the court is called upon to exercise its discretion, and to support this position the alleged contemnor relies on the case of Republic v Cabinet Secretary for Interior and Co-Ordination of National Government ex parte Abullahi Said Said [2019] eKLR .
It is argued that such sufficient reason for review need not be analogous to the grounds for review that are specifically stated at Order 45 Rule 1 of the Civil Procedure Rules. This, according to him, is as was held by the Court of Appeal in Wangechi Kimita vs. Wakibiru Mutahi [1985] eKLR where Nyarangi JA (as he then was) is said to have stated that the phrase “any other sufficient reason” under section 80 of the Civil Procedure Act is not limited to grounds similar to those expressly listed, as the provision grants the court broad discretion to review its decisions on any justifiable basis.
It is submitted that in addition to the fact that there is an error apparent on the face of the record and discovery of new and important evidence, there are also additional sufficient reasons for review of the ruling and order of 23 rd February 2023, including the need to correct the injustice that the ruling, which was based on an irregular/erroneous order, has visited upon the contemnor/applicant herein.
He further states that the fact that a failure to review the ruling and set aside the order will expose him to punishment by the court for disobedience of an order that was irregularly extracted and obtained, and whose wording does not reflect the actual order made by the court.
It is also submitted that it would be absurd for the court to decline to review and set aside a ruling that quotes and is based on the alleged disobedience of an order that was not in fact made by the court.
The contemnor/applicant submits that court orders indicate the date on which they were made or pronounced and the date on which they were issued by the court and these dates are often different. Further, that the order made by the court on 1 st November 2022 is not the order that was subsequently extracted and issued by the court on 2 nd November 2022.
He further submits that he has no issue whatsoever with the order that was made by the court on 1 st November 2022, his issue is with the erroneous version of the order that was irregularly extracted and issued by the court on 2 nd November 2022.
On whether or not his application is res judicata, the contemnor/applicant submits that the same is not as no previous application had been made by him based on the same issue(s) and also, that none of the previous applications referred to by the ex parte applicant in the grounds of objection and the replying affidavit relate to the same order, the basis of the application of 11 th March 2025.
Additionally, that even more importantly, this court has wide powers and discretion under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to review its previous decisions, which powers and discretion of the court have been properly invoked by him in addition to invoking the court’s inherent jurisdiction to make orders for the ends of justice.
To support this position, the contemnor/ applicant relies on the case of Zablon Mokua v Solomon M. Choti & 3 others [2016] eKLR , where the High Court is said to have allowed an application for review and cited with approval the holding in National Bank of Kenya Ltd v Ndungu Njau , where the court is said to have observed that 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. It is argued that the ex parte applicant has therefore failed to demonstrate that his application is res judicata .
On the issue of a notice of appeal having already been filed, it is submitted that this contention is wrong both factually and legally as from a factual perspective, the contemnor/applicant’s notice of appeal relates to the order made by the Court on 20 th December 2023 while the present application relates to the erroneous order issued by the court on 2 nd November 2022. It is submitted that there is no notice of appeal filed against the order issued on 2 nd November 2022.
It is also the contemnor/applicant’s case that a notice of appeal is merely an expression of intent and does not amount to filing an appeal. Further, that under Section 80 of the Civil Procedure Rules, the right to seek review is only barred once an actual appeal has been filed. Therefore, that even if a notice of appeal had been lodged against the orders in question, a review would still be competent. He relies on the case of Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & Others [2020] KECA 633 (KLR) , where the Court of Appeal is said to have affirmed that a notice of appeal does not constitute an appeal and does not oust the High Court’s jurisdiction to hear a review application.
It is submitted that no evidence of an appeal in the Court of Appeal has been presented, and that indeed, no appeal has been filed by the contemnor/applicant or any other party emanating from this matter.
The contemnor submits that the ex parte applicant similarly complains about an application for stay of proceedings in this matter filed in the Court of Appeal, being Nairobi Court of Appeal Civil Application No. E081 of 2024 Rosana Oscar Omurwa v Kaka Travellers Co-operative Savings and Credit Society Limited . It is submitted that firstly, the application in the Court of Appeal was filed purely to preserve the subject matter of the intended appeal against this Court’s ruling and order of 20 th December 2023, and that the present application before this Court does not relate to the ruling and order of 20 th December 2023 but the erroneous order issued on 2 nd November 2022.
The contemnor/applicant argues that both the High Court and the Court of Appeal have power to stay proceedings where necessary to prevent a matter from being rendered moot. He explains that the stay sought before the Court of Appeal was to enable him to pursue an intended appeal against the ruling of 20 th December 2023, while the stay sought before this Court concerns the contempt proceedings pending determination of his application to correct the erroneous order of 2 nd November 2022.
He further states that the Court of Appeal application was filed before the discovery, upon obtaining certified proceedings on 8 th March 2024, that the order extracted on 2 nd November 2022 was fictitious and did not reflect the actual order made on 1 st November 2022.
Accordingly, he maintains that there is no overlap between the two applications and that the ex parte applicant has failed to prove otherwise, having not produced the alleged Court of Appeal application. Finally, he submits that it is illogical to suggest that he is estopped from challenging the erroneous order merely because he initially believed it to be proper, since estoppel cannot validate a non-existent order; an order never made by the court must be set aside ex debito justitiae.
Response
Opposing the application for review, the ex parte applicant contends that the contemnor’s/applicant’s motion dated 11 th March 2024 is res judicata , having already been determined through several prior applications. It is argued that the contemnor had previously opposed the contempt application by a replying affidavit sworn on 15 th December 2022, which application was ruled upon on 23 rd February 2023, yet he did not then challenge the order of 1 st November 2022. Further, that he filed similar applications on 3 rd March 2023 and 11 th October 2023, both of which were dismissed, and that therefore, the present motion is therefore a fourth attempt to re-litigate the same issues.
The ex parte applicant maintains that the application is incompetent and without merit , as the court has already declared Mr. Omurwa guilty of contempt of court by an order of 23 rd February 2023, which remains in force and has not been set aside or been appealed against. It is further argued that the motion is a backdoor attempt to delay or obstruct enforcement of the contempt order in violation of the constitutional principle of the rule of law, and that the grounds raised properly belong to an appeal, not a review, which this court lacks jurisdiction to entertain.
The ex parte applicant contends that the contemnor’s motion dated 11 th March 2024 improperly seeks review of this Court’s order of 23 rd February 2023, which found him guilty of contempt and led to his being sentenced by Justice Chigiti SC, disguised as an application to set aside the order of 1 st November 2022. They argue that the motion is frivolous, vexatious and an abuse of process, since the contemnor has already exhausted the available avenues for review and has filed a notice of appeal, thereby barring him from invoking the court’s review jurisdiction under Section 80 of the Civil Procedure Act.
It is further submitted that the contemnor applicant herein has a pending application before the Court of Appeal seeking a stay of his sentencing, which demonstrates that this application duplicates the same issues and amounts to abuse of process. The ex parte applicant adds that the motion is incompetent, as the sentencing order remains lawful and unchallenged, and that the contemnor is estopped under Section 120 of the Evidence Act from denying or resiling from his acceptance of the order of 1 st November 2022. Finally, it is contended that no unlawful or erroneous order was extracted on 2 nd November 2022, as alleged.
The ex parte applicant argues that the contemnor’s motion dated 11 th March 2024 is grossly incompetent because it refers to a non-existent order allegedly made on 2 nd November 2022, whereas the valid order was issued on 1 st November 2022. The motion is said to be a misuse of the review process and a disguised attempt to revisit matters already determined, including the contempt finding and subsequent sentencing. The ex parte applicant maintains that the contemnor has already exhausted all review avenues , including the filing of a notice of appeal , and that he therefore cannot invoke review jurisdiction under Section 80 of the Civil Procedure Act. The application is described as frivolous, vexatious, and a gross abuse of court process , intended to delay enforcement of existing court orders.
The ex parte applicant contends that the contemnor’s Motion dated 11 th March 2024 is a misuse of the court process, filed despite a pending Court of Appeal application (Civil Application No. E081 of 2024) seeking to stay his sentencing. It is argued that the motion improperly targets a non-existent order of 2 nd November 2022, while the genuine orders of 1 st and 21 st November 2022 issued and reaffirmed by A.K. Ndung’u J remain valid and enforceable. The ex parte applicant insists that no unlawful order was extracted and that court orders are prepared by the Registrar’s office, not by the parties, under post–Covid-19 procedures.
The exparte applicant maintains that the contemnor has shown acquiescence to the valid orders and is estopped from denying them, yet continues to breach the same orders by facilitating the operations of Metro Trans E.A. Ltd along Tom Mboya Street, contrary to express court prohibitions. This ongoing defiance has allegedly disrupted the ex parte applicant’s PSV operations, undermined the authority and dignity of the court, and brought its orders into public disrepute.
The ex parte applicant therefore urges that the contemnor’s motion be dismissed, that he be committed to civil jail for persistent disobedience, and that the court uphold its authority under Article 27(1) of the Constitution and Rule 39 of the High Court (Organization and Administration) (General) Rules to punish contempt and protect lawful court orders.
The ex parte applicant also filed written submissions dated 30 th April 2025. In the submissions it is urged that the Motion dated 11 th March, 2024 is incompetently before the Court as the Court issued an order for the sentencing of the contemnor, which has also not been set aside and hence the Applicant cannot by his motion seek to stay that which is lawful.
It is also submitted that Mr. Omurwa is guilty of acquiescence and his conduct amounts to estoppel, and that pursuant to Section 120 of the Evidence Act, he cannot resile from his acceptance of the Order of 1 st November, 2022 herein issued and never set aside.
The ex parte applicant relies on Mulla, Code of Civil Procedure 18 th Ed. 2012, at p.293 where according to the ex parte applicant, it is stated that the doctrine of res judicata ensures finality in litigation by preventing parties from repeatedly relitigating issues already determined by a competent court, thereby safeguarding judicial time, resources, and the integrity of the justice system.
The exparte Applicant also relies on the cases of In The Independent Electoral and Boundaries Commission vs. Maina Kiai &5 Others [2017] eKLR and Siri Ram Kaura v M.J.LE. Morgan, CA 71/1960 (1961) EA 462 where the court is said to have observed that the principle of res judicata bars a party who has lost a case from reopening the same litigation merely by introducing additional or similar facts, unless such new facts fundamentally change the case and could not have been discovered earlier with reasonable diligence, thereby preventing parties from evading the doctrine by rephrasing issues or adding new parties.
The ex parte applicant relies on several other cases where the courts have addressed the doctrine of res judicata and these include ET vs. Attorney General & Another (2012) eKLR, Pop In (K) Ltd & 3 others & Habib Bank Zurich Civil Appeal No 80 of 1988 [1990] KLR 609 , Omondi v National Bank of Kenya Limited and others (2001); EA 177, Nancy Mwangi T/A Worthlin Marketers vs. Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 others [2014] eKLR, Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR ,Lotta v Tanaki [2003] 2 EA 556 and Gurbachan Singh Kalsi v Yowani Ekori Civil Appeal No 62 of 1958[1958] EA 450 .
The ex parte applicant contends that after repeatedly changing advocates from Mukami Law to Marube Law vide a Notice of Change of Advocates dated 3 rd November, 2023 and filing multiple similar applications challenging the same contempt order of 23 rd February 2023 all of which were dismissed and that the applicant has now filed the motion dated 11 th March 2024 in an attempt to re-litigate matters already determined, despite having filed a notice and pending appeal before the Court of Appeal, rendering the motion incompetent, frivolous, and an abuse of the court process.
Further reliance is placed on Gab International Construction Co; Ltd v Zachary Kabucho Ndungu (Civil Appeal E032 of 2022) [2023] KEHC 17549(KLR) (19 th May 2023) (Judgment) where the court is said to have held that the appellant’s appeal was bound to fail because having chosen to seek a review of the trial court’s ruling instead of appealing, the appellant could not later file an appeal over the same decision, as doing so constituted an abuse of the court process.
The ex parte applicant submits that at any rate, the contemnor/Applicant is guilty of acquiescence and his conduct amounts to estoppel, and hence he cannot resile from his acceptance of the order of 1 st November, 2022 herein issued and which he has never set aside. Reliance is placed in the case of Kenya Commercial Bank v M’Mionki (Environment and Land Appeal 1 of 2024) [2024] KEELC 5782 (KLR) (24 July 2024) (Judgment) , where the court is said to have held that the doctrines of estoppel and waiver prevent a party from asserting a right they knowingly chose to forgo, as affirmed in Serah Njeri Mwobi vs. John Kimani Njoroge [2013] eKLR and Seascapes Ltd vs. Development Finance Co. (K) Ltd, Civil Appeal No. 247 of 2001 .
The ex parte applicant further relies on the holding in the English case , Pickard v Sears 112 E.R. 179 where Lord Denman C is said to have crystallized the doctrine of estoppel.
The ex parte applicant submits that from his conduct in these proceedings, Mr. Omurwa has not been prejudiced in any manner by the processes of the Court effecting and demanding obedience of the Order of 1 st November, 2022 and affirmed again on 22 nd November 2022 with his full participation.
It is submitted that no step of the proceedings has been vitiated at all. Further, that Mr. Omurwa stands bound by his conduct in the proceedings through active and uninhibited, unconditional participation, in the issues relating to the enforcement of the order of 1 st November, 2022 amounting to estoppel by conduct.
The ex parte Applicant also relies on the Court of Appeal decision in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR where the court is said to have held that the doctrine of estoppel bars a person from denying or contradicting what their previous actions or statements have implied.
The ex parte applicant argues that having fully participated in the proceedings leading to the order of 1 st November 2022, Oscar Rosana Omurwa is estopped from claiming prejudice, as the order was properly drawn by the Court’s Deputy Registrar under the current procedure, and that therefore, his motion of 11 th March 2024 should be dismissed, the contempt order enforced and the contemnor committed to civil jail for non-compliance.
It is also submitted that the motion dated 11 th March, 2024 must fail and reliance i
[...truncated]