I. Introduction
1. What is before this Honorable Court for its determination is the Notice of Motion application dated 28th April 2025 filed by Joan Muthoni Nduta the Defendant/Applicant herein. It was brought under the dint of the provisions of Sections 1A and 3A of the Civil Procedure Act, Cap. 21, Order 45 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. Upon service, and while opposing the application, on 26th May 2025, the Plaintiff/Respondent filed a 16 Paragraphed Replying Affidavit. The Honourable Court shall be dealing with the replies in more in depth at a later stage of this Ruling.
II. The Defendant/Applicants Case.
3. The Defendant/Applicant sought for the following orders:
a) Spent.
b) That the Honourable Court review and/or vary the order issued on 5th December 2018 and allow the Defendant/Applicant to advertise for rent, rent and lease all that property known as KWALE/DIANI COMPLEX/695 pending hearing and determination of this suit
c) That costs of this application be provided for.
4. The application was premised on the grounds, testimonial facts and averments made out under the 17 Paragraphed supporting affidavit of JOAN MUTHONI NDUTA sworn and dated 28th April 2025 and two (2) annextures marked as “J -1 & 2” annexed thereto. The Deponent averred as follows that:-
a) She was the Defendant/Applicant herein thus conversant and competent to swear this Affidavit.
b) She was sued by the Plaintiff/Respondent in a suit for ownership of the suit property known as Kwale/Diani Complex/695.
c) The Honourable Court issued a court order dated 5th December 2018 ‘inter - alia” prohibiting the Defendant/Applicant from advertising, renting, alienating, transferring or in any way dealing with the property known as Kwale/Diani Complex/695 pending the hearing and determination of this suit. She had always obeyed the said order.
d) She held that this suit has not been heard for reasons that there was a pending court of appeal case of Leisure Lodge Limited which had not been determined and which the court took judicial notice of. T
e) On 25th March 2025 this court slated the matter for mention on 30th September 2025 to ascertain progress of the matter.
f) For the past 7 years the Defendant/Applicant had singlehandedly maintained the suit property and in particular paid for swimming pool chemicals, maintenance charges, salaries and electricity bills.
g) She spend an average of a sum of Kenya Shillings of Eight Thousand Four Hundred and Seven (Kshs. 8,407/-) for the swimming pool chemicals each month and had spent over Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-) for the period of over 6 years. That she had also been paying day and night guard a total of Kenya Shillings Twelve Thousand Six Nineteen Hundred (Kshs. 12,619/-) per month, salary to the pool attendant of a sum of Kenya Shillings Three Hundred (Kshs. 300/-) daily and approximately Kenya Shillings Three Ninety Two Thousand Four Hundred (Kshs. 392,400/-) as salaries throughout the entire period. In total she had used around a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) which without the property would have wasted away.
h) Currently, there were major renovations to be done but the Defendant/Applicant lacked finances and was unable to continue with maintenance of the place. Furthermore, she was prohibited by the said Court order from maintaining the property.
i) While the Court of Appeal case was still pending, she was bound to suffer. She was apprehensive that Judgement may be entered in the Court of Appeal, an appeal could be preferred and thus prolonging the hearing and determination of this Case.
j) This court has the inherent jurisdiction to issue orders in the interest of justice. She prayed that the application be allowed to rent the premises in order to allow her to maintain the premises with a view of preserving the property.
III. The responses by the Plaintiff/Respondent
5. On 26th May 2025, the Plaintiff/Respondent filed a 16 Paragraphed Replying Affidavit sworn by KAREL BRUNEEL MARC the Plaintiff/Respondent himself in opposition of the application. He stated as follows that: -
a) He had read and also had his Advocate on record explain to him the meaning and purport of the Defendant’s application dated 28th April, 2025.
b) The Defendant’s Application was frivolous, vexatious and an abuse of this Honourable Court’s time and process as was full of falsehoods, misrepresentation, concealment of material facts and thus brought in bad faith.
c) He was the one who purchased all that parcel of land known as Kwale/Diani Complex/695 and the Defendant maliciously caused the property to be registered in her name after she misrepresented to the Plaintiff/Respondent that the Kenyan laws never allowed him to own property directly by virtue of his foreign status.
d) The Honourable Court issued a Court Order dated 5th December 2018 inter - alia prohibiting the Defendant/Applicant from advertising, renting, alienating, transferring or in any way dealing with the property known as Kwale/Diani Complex/695 pending hearing and determination of this suit and thus the Defendant/Applicant should comply with the said court order instead of asking the Honourable Court to review and/or vary their order.
e) The Court does not, and ought not to be seen to, make orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee.
f) It should be noted that the Plaintiff/Respondent had not denied that this suit had not been heard due to the fact that there was a pending Court of Appeal Case of Leisure Lodge limited which had not been determined. The interim orders dated 5th of December 2018 were issued by the Honorable Lady Justice to preserve the subject matter and stop the Defendant/Applicant’s intention to unfairly benefit from the property at the Plaintiff’s expense at the same time causing it to depreciate in value.
g) Also that it was not true that the Defendant/Applicant singlehandedly maintained the Suit Property, paid for swimming pool maintenance charges, electrical bills and other utility bills for the past 7 year without the Applicant’s contribution.
h) The utility bills referred to by the Defendant/Applicant were paid for through the service charge. They were paid by the unit owners who purchased apartments erected on the property. It was paid directly to the Defendant/Applicant.
i) The Defendant/Applicant had approached the court with false information intended at misleading this Honorable court and with unclean hands.
j) Two apartments in the suit property had been sold yet the Defendant/Applicant still wanted to rent them out. The Defendant/Applicant never had proprietary rights over the apartments and thus she could not rent them out.
k) The Defendant/Applicant was guilty of material non-disclosure. The Defendant would not suffer any harm while the dispute in the court of appeal case was pending determination before the matter could be heard.
l) Lastly, the Defendant/Applicant’s Application lacked merit as there were no sufficient grounds for setting aside the orders issued by the Court on 5th December 2018.
IV. Submissions
6. On 26th May 2025 while all the parties were present in Court, they were directed to have the application dated 28th April 2025 disposed of by way of written submissions and all the parties complied. Thus, the Court proceeded and thereby reserved the ruling on its merit to be delivered on 16th July 2025.
A. The Written Submissions by the Defendant/Applicant
7. On 12th April 2025 the Law firm of Messrs. Mwangi Kihira & Co Advocates filed submissions on behalf of the applicant. Mr Kihira Advocate intimated to court that the suit was slated for mention on 30th September 2025 to ascertain progress of a pending Court of Appeal Case of Leisure Lodge Limited which was yet to be determined. That the court had taken judicial notice of the fact that the said mater affected the ownership of the suit property and as such this matter could not proceed for hearing.
8. According to the Learned Counsel, in light of the provisions of Order 45 Rule (1) of the Civil Procedure, 2010 a review of any order or decree may only be granted in the following circumstances: - i. where there is a mistake or error apparent on the face of the record. ii. where new and important evidence has come to light. iii. for any other sufficient reason. That the provision of Section 3A of the Civil Procedure Act Cap. 21 provides that:-
‘Nothing in this Act 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 abuse of the process of the court.’
9. To buttress on this point, the Counsel referred Court to the case of:- “Wachira Karani – Versus - Bildad Wachira [2016] KEHC 6334 (KLR)” the court stated as follows:
“Discussing the nature and objects of the inherent powers of the court, Sir Dinshah Mulla in The Code of Civil Procedure observes that: - "the Code of Civil procedure is not exhaustive, the simple reason being that the legislature is incapable of contemplating all the possible circumstances, which may arise, in future litigation, and consequently, for providing the procedure for them. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justiciae for doing real and substantial justice between the parties. The court has, therefore, in many cases, where the circumstances so require, acted upon the assumption of the possession of an inherent power to act ex debito justiciae, and to do real and substantial justice for the administration, for which alone, it exists. However, the power, under this section, relates to matters of procedure. If ordinary rules of procedure result in injustice, and there is no other remedy, they can be broken in order to achieve the ends of justice............"
10. Learned Counsel submitted that the powers vested in the court are of a wide scope and ambit. The court was not powerless to grant relief when the ends of justice and equity so demanded, because the powers vested in the court were of a wide scope and ambit. The inherent power, as observed by the Supreme Court of India in the case of “Raj Bahadur Ras Raja – Versus - Seth Hiralal,” held that “has not been conferred 2 on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it." Lord Cairns in “Roger – Versus - Comptoir D' Escompts De Paris” stated as follows:-
"One of the first and highest duties of all, Courts is to take care that the act of the court does no injury to any of the suitors and when the expression 'Act of the court' is used it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matters up to the highest court which finally disposes of the case."
11. It was submitted that the Defendant/Applicant had been prejudiced by the said Orders and the suit property shall continue to waste away if the said property was not maintained. As such the court ought to review the said orders it issued given the fact that there now existed new evidence to the effect that the suit property was wasting away. The timelines of the termination of the dispute at the Court of Appeal may not be ascertained and by the time all parties exhaust their remedies, the suit property may be completely wasted away.
B. The Written Submissions by the Plaintiff/Respondents
12. The Law firm of Messrs. Adoli & Company Advocates filed submissions on behalf of the Plaintiff/Respondent dated 3rd June 2025. Mr. Rogers Alinyo Advocate identified the following issues for determination:
a) Whether this Court has jurisdiction to review and/or vary the order it issued on 5th December 2018 (without prejudice)?
b) Whether the Defendant had satisfied the test for reviewing and/or varying of the order issued on 5th December 2018?
c) Whether the Application dated 28th April 2025 was brought without undue delay?
d) Whether Costs to be paid by the Defendant?
13. On the first issue for determination. The Learned Counsel averred that the proceedings in this case were stayed pending the determination of “Mombasa COACA No. 4 and 8 of 2020” which appeals were still pending at the Court of Appeal in Mombasa. That the above appeals were filed against the Judgement of the High Court in Mombasa Petition Number 21 of 2010 which revoked title deeds to various parcels of land including Kwale/ Diani Complex/695 which is the subject of this suit. That at the moment unless the Court of Appeal sets aside the impugned decision of the High Court, the subject matter in this case belonged to the Leisure Lodges Limited who were the Petitioners in Petition Number 21 of 2010.
14. The Learned Counsel submitted that being that the issue of ownership of the subject matter to this case was determined by the High Court in Mombasa in Petition number 21 of 2010 and an appeal against that decision was still pending at the court of Appeal in Mombasa, this Honourable Court lacks the jurisdiction to delve into matters that would in effect give proprietary rights to the Applicant herein. That this case was stayed pending determination of the appeal and thus this court cannot interfere with the orders in place until the Court of Appeal delivers its determination.
15. It was further submitted that the Honourable Court may only have jurisdiction to review and/or vary orders whereby there was a discovery of such new and important matter or evidence which, after the exercise of due diligence, was not within the person’s knowledge or could not be produced by him/her at the time the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record.
16. According to Counsel Mr Alinyo, the Defendant/Applicant in their Application never provided the grounds that would bestow jurisdiction upon the Honourable Court. Thus, the court lacks the jurisdiction to review and/or vary the order it issued on 5th December 2018. Reference was made to the holding in the case of “Republic – Versus - Public Procurement Administrative Review Board & 2 others (2018) eKLR” Paragraph 12 it was held that:-
“Section 80 of the Civil Procedure Act gives the power of review and Order 45 of the Civil Procedure Rules sets out the rules. The rules restrict the grounds for review limiting it to the following grounds; (a) the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) on account of some mistake or error apparent on the face of the record, or
(c) for any other sufficient reason and whatever the ground there is a requirement that
the application has to be made without unreasonable delay.”
17. The Honourable Court was invited to associate itself with the above authority. Also that the Defendant/Applicant had sought for orders of review on grounds which the court does not have jurisdiction to grant.
18. On whether the Defendant had satisfied the test for reviewing and/or varying of the order issued on 5th December 2018. It was answered in the negative. The Counsel submitted that the Plaintiff had not satisfied the test for reviewing and/or varying of the order issued by the Honorable Court on 5th December 2018.
19. That the provision of Section 80 of the Civil Procedure Act, Cap. 21 gave the court unfettered discretion to review its decision. Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 sets out the grounds for review. It was submitted that one of the grounds relied on by the Defendant/Applicant in their application was that there being an error apparent on the face of record. Time and time again, courts had held that the term error on the face of record meant a mistake or an error, which was prima facie visible and never required any detailed examination.
20. It was further submitted that a review may be granted whenever the court considered that it was necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. That it would not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor could it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.
21. The Counsel stated that misconstruing a statute or other provision of law could not be a ground for review as was stated in the case of:- “National Bank of Kenya – Versus - Ndungu Njau 1997 eKLR Court of Appeal”. The court was requested to adopt the said authority and to make a finding that the Defendant/Applicant had failed in proving the grounds necessary to be granted an order to review and/or vary the orders issued.
22. It was contended that the Defendant/Applicant had not satisfied the test for reviewing and/ or varying of the order issued on 5th December 2018. The Learned Counsel placed reliance on the case of:- “Pancras T. Swai – Versus - Kenya Breweries Limited (2014) KECA 883 (KLR)” wherein it was held that:-
“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason.”
23. The Counsel held that as it was repeatedly pointed out in various Court decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act, Cap 21, which conferred an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.”
24. The court was invited to associate itself with the above authorities. That court should find that similarly in this present application the Defendant/Applicant had failed to satisfy the grounds necessary in order for the court to grant them an order for review.
25. On whether the application dated 28th April 2025 was brought without undue delay. The Plaintiff/Respondent submitted that the said application was brought with undue delay. Taking that the Court order she was seeking to review was issued on 5th December 2018.
26. The Defendant/Applicant had not been able to give a reason as to the undue delay in bringing this Application after the order was issued on 5th December 2018. Reference was made in the case of “Langer vs. Mutamba & Another (Civil Case 303 of 2011) (2023) (KLR) (Commercial and Tax) (17th November, 2023) (Ruling) “where the Nairobi High Court found a similar Application like the one herein to be unmeritorious consequently the Application was declined and dismissed with costs.” The court was urged to apply the said application.
27. Lastly, the Counsel submitted on whether costs to be paid by the Defendant/Applicant. He stated that cost to follow the event and that the successful party was entitled to costs unless exceptional circumstances exist.
V. Analysis and Determination
28. I have considered the pleadings before me which is basically the filed Notice of Motion application dated 28th April 2025, response thereto, the written submissions, the myriad of authorities ably made by the parties herein, the relevant provision of the Constitution of Kenya, 2010 and the statures.
29. For the Honourable Court to reach at a fair, reasonable and Equitable informed decision, it has condensed the subject matter into the following three (3) salient issues for determination. These are:-
a) Whether the Notice of Motion application dated 28th April, 2025 by the Defendant/Applicant has any merit whatsoever.
b) Whether the parties herein are entitled to the reliefs sought
c) Who will bear the costs of the application.
ISSUE No. a). Whether the Notice of Motion application dated 28th April, 2025 by the Defendant/Applicant has any merit whatsoever.
30. Under this sub – heading, the Honourable Court will be examining the main substratum of this application being review and/or varying of its orders as provided for by law. This powers are discretionary in nature. From the filed application dated 28th April, 2025 by the Defendant/Applicant herein, the Honourable Court has been called upon to vary and/or review its orders delivered on 5th December 2018 and to allow the Defendant/Applicant to advertise for rent, rent and lease all that property known as Kwale/Diani Complex/695 pending hearing and determination of this suit.
31. Review of a court decision is guided by the provision of Section 80 of the Civil Procedure Act Cap. 21 and Order 45 of the Civil Procedure Rules, 2010. Section 80 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
32. While Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“1. (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.”
33. There has been numerous decisions made by the Court including this one with reference to review, varying and setting aside its orders. Hence, the Honourable Court will not be re – inventing the wheel herein. However, it will just cite a few of them for ease of reference and information. In the case of “Republic – Versus - Public Procurement Administrative Review Board (Supra)& 2 others [2018] eKLR it was held: -
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”
34. Discussing the scope of review, this court in “South Sea Services Limited v Mutiso (Environment and Land Appeal 68 of 2021) [2022] KEELC 2409 (KLR) (9 May 2022) (Ruling) this Court stated that to qualify for being granted the orders for review, varying and/or setting aside a Court order for the provisions of Order 45 of the Civil Procedure Rules, 2010 to be fulfilled, the following ingredients, jurisdiction and scope are required: -
a. There should be a person who considers himself aggrieved by a Decree or order;
b. The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;
c. A decree or order from which no appeal is allowed by this Act;
d. There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or
e. 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.
f. The review is by the Court which passed the decree or made the order without unreasonable delay.
35. Be it as it may, the main issue is for the court to establish whether the threshold for review orders has been met. The Applicant has premised the application on the ground that sufficient reason has been stated for the court to grant the orders sought. Of sufficient reason, the court in the case of “Shanzu Investments Limited – Versus - Commissioner for Lands Civil Appeal No 100 of 1993” stated thus:-
‘’Any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act: and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous”
36. Additionally, in the case of:- “Republic – Versus - Cabinet Secretary for Interior and Co - ordination of National Government Ex - Parte Abullahi Said Said [2019] eKLR”, the court observed, with respect to any other sufficient reason as follows:
“A court can review a judgment for any other sufficient reason. In the case of Sadar Mohamed vs Charan Singh and Another [19] it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure [20] (writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression 'any other sufficient reason’...means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out..., would amount to an abuse of the liberty given to the tribunal under the Act to review its judgement.
37. Further in the case of:- “Tokesi Mambili and others – Versus - Simion Litsanga Civil Appeal 90 of 2001 – Kisumu” the Court of Appeal held as follows: -
“In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason. Where the application is based on sufficient reason it is for the Court to exercise its discretion.”
38. I think I have said enough to demonstrate the grounds under which an order of review may be granted. Now its to turn to the issues of the instant case and apply the said legal principles to it.
ISSUE No. b). Whether the parties herein were entitled to the reliefs sought
39. Under this Sub – heading the Honourable Court will endeavour to apply the above principles to the instant case. It is not in dispute that on 5th December 2018, the court issued orders prohibiting the Defendant/Applicant from advertising, renting, alienating, transferring or in any way dealing with the suit property known as Kwale/Diani Complex/695. Initially, the issues surrounding ownership of the suit property were dealt with by the high court in Mombasa and an appeal has been preferred before the Court of Appeal against the said decision. It was for this the reason that this suit was infact stayed pending the hearing and determination of the appeal lodged at the court of appeal.
40. The Defendant/Applicant has approached court seeking to review/set aside the orders of 5th December 2018 on the grounds that this Court has wide and unfettered jurisdiction and powers to do so. This was vigorously expressed using several authorities from our courts and international jurisdictions. Indeed, I must admit they were very convincing and persuasive precedents. The Defendant/Applicant has informed court that she has been singlehandedly be maintaining the suit property, meeting all the logistical expenses which included the running of the swimming pool, paying monthly staff salaries, electricity bills and other related expenses from the time the proceedings were stayed and the orders were issued against her in the year 2018 to date. That the property is in need of urgent renovations as there is the danger of it wasting away hence the need to allow the her put the property in use in order to earn an income from renting the premises. Despite of all these state of affairs, the Applicant is prohibited not only entering, dealing with but also from making any earnings from the suit property by the said Court order.
41. On the other hand, the Plaintiff/Respondent vehemently denies all these allegations. He has maintained that some of the houses in the suit premises are currently disposed off while others have been rented out. While the Defendant/Applicant has no proprietary rights over the sold off houses, the service charges to these rented houses are paid directly to the Defendant/Applicant. As such the issue that the Defendant/Applicant uses her own financial resources as alleged and depicted to Court to maintain the property are far from the truth and a total misrepresentation of facts. For these reasons, they urged the Court to dismiss the application for being an abuse of the due process.
42. The court is well alive of the fact an appeal pertaining the issues in this suit is before the court of appeal. In the event that the orders sought herein are granted, it will amount to the court acting out of its jurisdiction as the matter is already before a court of higher status. Indeed, the Court will be assuming the role of an appellate court over its own decision. In the given circumstances, this court cannot make any orders over the suit property unless the issues at the court of appeal have been conclusively dealt with and the matter referred back to this court. The Defendant/Applicant is not bereft of any legal options. Nay far from it. My advice will be that the Applicant prefers an appeal against the orders of 5th December 2018. Alternatively, the Applicant should be patient enough to await the outcome of the Court of Appeal in the pending appeal.
43. The Applicant herein has not demonstrated to the court that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced by her at the time when the orders were issued.
44. The Applicant has further not demonstrated to the court that there had been some mistake or error apparent on the face of the record and finally the Applicant has failed to demonstrate that the review sought was for any other sufficient reason.
45. Accordingly, I am not persuaded that the Defendant/Applicant has offered the Court any cogent grounds within the meaning of the provisions of Section 80 of the Civil Procedure Act, cap. 21 nor Order 45 Rule 1 of the Civil Procedure Rules, 2010 to warrant being granted the orders sought prayed for in the filed application hereof. In saying so, my finding is also fortified by the holding in the case of Evan Bwire – Versus - Andrew Nginda Civil Appeal No. 103 of 2000, Kisumu; [2000] KLR 8340, where the court held that:-
‘an application for review will only be allowed on very strong grounds....".
46. In other words, I reiterate, the grounds relied upon by the Defendant/Applicant whatsoever, do not fall within the scope for review. The foregoing analysis points to only one thing; that the application herein does not meet the legal threshold for review under the provision of Section 80 of the Civil Procedure Act, Cap 21 and Order 45 of the Civil Procedure Rules, 2010. Thus, it must fail.
ISSUE No. b). Who will bear the costs of the application
47. It is now well established that the issue of costs is discretionary. Costs mean the award that is granted to any party at the conclusion of a legal action or proceeding in any litigation process. The provision of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By the event it means the results or outcome of the legal action.
48. In the instant case, the Defendant/Applicant has not been able to succeed in her application dated 28th April, 2025. From the face value, the Plaintiff/Respondent who vehemently opposed the said application would be entitled to costs. However, in the given circumstances and based on the discretion of the Court, it is just fair and reasonable that each party bear their own costs accordingly.
VI. Conclusion & Disposition
49. Consequently, based on the in-depth analysis of the framed issues herein, the Honourable Court, guided by the principles of Preponderance of probabilities and the balance of convenience, proceeds to make the following specific orders. These are:-
a) THAT the Notice of Motion application dated 28th April, 2025, be and is hereby found to lack merit and thus dismissed.
b) THAT in order to staying or cause to stay abreast of the proceedings in this matter and for expediency's sake, there be a mention on 30th September, 2025, for purposes of ascertaining the actual position of the Court of Appeal Cases – COACA (Mombasa) No. 4 and 8 of 2020 and further directions.
c) THAT each party to meet its own costs of this application.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……16TH ……. DAY OF ………. JULY ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) No appearance Advocate for the Plaintiff/Respondent.
c) Mr. Mwangi Kihira, Advocate for the Defendant/Applicant.
1. What is before this Honorable Court for its determination is the Notice of Motion application dated 28th April 2025 filed by Joan Muthoni Nduta the Defendant/Applicant herein. It was brought under the dint of the provisions of Sections 1A and 3A of the Civil Procedure Act, Cap. 21, Order 45 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. Upon service, and while opposing the application, on 26th May 2025, the Plaintiff/Respondent filed a 16 Paragraphed Replying Affidavit. The Honourable Court shall be dealing with the replies in more in depth at a later stage of this Ruling.
II. The Defendant/Applicants Case.
3. The Defendant/Applicant sought for the following orders:
a) Spent.
b) That the Honourable Court review and/or vary the order issued on 5th December 2018 and allow the Defendant/Applicant to advertise for rent, rent and lease all that property known as KWALE/DIANI COMPLEX/695 pending hearing and determination of this suit
c) That costs of this application be provided for.
4. The application was premised on the grounds, testimonial facts and averments made out under the 17 Paragraphed supporting affidavit of JOAN MUTHONI NDUTA sworn and dated 28th April 2025 and two (2) annextures marked as “J -1 & 2” annexed thereto. The Deponent averred as follows that:-
a) She was the Defendant/Applicant herein thus conversant and competent to swear this Affidavit.
b) She was sued by the Plaintiff/Respondent in a suit for ownership of the suit property known as Kwale/Diani Complex/695.
c) The Honourable Court issued a court order dated 5th December 2018 ‘inter - alia” prohibiting the Defendant/Applicant from advertising, renting, alienating, transferring or in any way dealing with the property known as Kwale/Diani Complex/695 pending the hearing and determination of this suit. She had always obeyed the said order.
d) She held that this suit has not been heard for reasons that there was a pending court of appeal case of Leisure Lodge Limited which had not been determined and which the court took judicial notice of. T
e) On 25th March 2025 this court slated the matter for mention on 30th September 2025 to ascertain progress of the matter.
f) For the past 7 years the Defendant/Applicant had singlehandedly maintained the suit property and in particular paid for swimming pool chemicals, maintenance charges, salaries and electricity bills.
g) She spend an average of a sum of Kenya Shillings of Eight Thousand Four Hundred and Seven (Kshs. 8,407/-) for the swimming pool chemicals each month and had spent over Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-) for the period of over 6 years. That she had also been paying day and night guard a total of Kenya Shillings Twelve Thousand Six Nineteen Hundred (Kshs. 12,619/-) per month, salary to the pool attendant of a sum of Kenya Shillings Three Hundred (Kshs. 300/-) daily and approximately Kenya Shillings Three Ninety Two Thousand Four Hundred (Kshs. 392,400/-) as salaries throughout the entire period. In total she had used around a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) which without the property would have wasted away.
h) Currently, there were major renovations to be done but the Defendant/Applicant lacked finances and was unable to continue with maintenance of the place. Furthermore, she was prohibited by the said Court order from maintaining the property.
i) While the Court of Appeal case was still pending, she was bound to suffer. She was apprehensive that Judgement may be entered in the Court of Appeal, an appeal could be preferred and thus prolonging the hearing and determination of this Case.
j) This court has the inherent jurisdiction to issue orders in the interest of justice. She prayed that the application be allowed to rent the premises in order to allow her to maintain the premises with a view of preserving the property.
III. The responses by the Plaintiff/Respondent
5. On 26th May 2025, the Plaintiff/Respondent filed a 16 Paragraphed Replying Affidavit sworn by KAREL BRUNEEL MARC the Plaintiff/Respondent himself in opposition of the application. He stated as follows that: -
a) He had read and also had his Advocate on record explain to him the meaning and purport of the Defendant’s application dated 28th April, 2025.
b) The Defendant’s Application was frivolous, vexatious and an abuse of this Honourable Court’s time and process as was full of falsehoods, misrepresentation, concealment of material facts and thus brought in bad faith.
c) He was the one who purchased all that parcel of land known as Kwale/Diani Complex/695 and the Defendant maliciously caused the property to be registered in her name after she misrepresented to the Plaintiff/Respondent that the Kenyan laws never allowed him to own property directly by virtue of his foreign status.
d) The Honourable Court issued a Court Order dated 5th December 2018 inter - alia prohibiting the Defendant/Applicant from advertising, renting, alienating, transferring or in any way dealing with the property known as Kwale/Diani Complex/695 pending hearing and determination of this suit and thus the Defendant/Applicant should comply with the said court order instead of asking the Honourable Court to review and/or vary their order.
e) The Court does not, and ought not to be seen to, make orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee.
f) It should be noted that the Plaintiff/Respondent had not denied that this suit had not been heard due to the fact that there was a pending Court of Appeal Case of Leisure Lodge limited which had not been determined. The interim orders dated 5th of December 2018 were issued by the Honorable Lady Justice to preserve the subject matter and stop the Defendant/Applicant’s intention to unfairly benefit from the property at the Plaintiff’s expense at the same time causing it to depreciate in value.
g) Also that it was not true that the Defendant/Applicant singlehandedly maintained the Suit Property, paid for swimming pool maintenance charges, electrical bills and other utility bills for the past 7 year without the Applicant’s contribution.
h) The utility bills referred to by the Defendant/Applicant were paid for through the service charge. They were paid by the unit owners who purchased apartments erected on the property. It was paid directly to the Defendant/Applicant.
i) The Defendant/Applicant had approached the court with false information intended at misleading this Honorable court and with unclean hands.
j) Two apartments in the suit property had been sold yet the Defendant/Applicant still wanted to rent them out. The Defendant/Applicant never had proprietary rights over the apartments and thus she could not rent them out.
k) The Defendant/Applicant was guilty of material non-disclosure. The Defendant would not suffer any harm while the dispute in the court of appeal case was pending determination before the matter could be heard.
l) Lastly, the Defendant/Applicant’s Application lacked merit as there were no sufficient grounds for setting aside the orders issued by the Court on 5th December 2018.
IV. Submissions
6. On 26th May 2025 while all the parties were present in Court, they were directed to have the application dated 28th April 2025 disposed of by way of written submissions and all the parties complied. Thus, the Court proceeded and thereby reserved the ruling on its merit to be delivered on 16th July 2025.
A. The Written Submissions by the Defendant/Applicant
7. On 12th April 2025 the Law firm of Messrs. Mwangi Kihira & Co Advocates filed submissions on behalf of the applicant. Mr Kihira Advocate intimated to court that the suit was slated for mention on 30th September 2025 to ascertain progress of a pending Court of Appeal Case of Leisure Lodge Limited which was yet to be determined. That the court had taken judicial notice of the fact that the said mater affected the ownership of the suit property and as such this matter could not proceed for hearing.
8. According to the Learned Counsel, in light of the provisions of Order 45 Rule (1) of the Civil Procedure, 2010 a review of any order or decree may only be granted in the following circumstances: - i. where there is a mistake or error apparent on the face of the record. ii. where new and important evidence has come to light. iii. for any other sufficient reason. That the provision of Section 3A of the Civil Procedure Act Cap. 21 provides that:-
‘Nothing in this Act 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 abuse of the process of the court.’
9. To buttress on this point, the Counsel referred Court to the case of:- “Wachira Karani – Versus - Bildad Wachira [2016] KEHC 6334 (KLR)” the court stated as follows:
“Discussing the nature and objects of the inherent powers of the court, Sir Dinshah Mulla in The Code of Civil Procedure observes that: - "the Code of Civil procedure is not exhaustive, the simple reason being that the legislature is incapable of contemplating all the possible circumstances, which may arise, in future litigation, and consequently, for providing the procedure for them. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justiciae for doing real and substantial justice between the parties. The court has, therefore, in many cases, where the circumstances so require, acted upon the assumption of the possession of an inherent power to act ex debito justiciae, and to do real and substantial justice for the administration, for which alone, it exists. However, the power, under this section, relates to matters of procedure. If ordinary rules of procedure result in injustice, and there is no other remedy, they can be broken in order to achieve the ends of justice............"
10. Learned Counsel submitted that the powers vested in the court are of a wide scope and ambit. The court was not powerless to grant relief when the ends of justice and equity so demanded, because the powers vested in the court were of a wide scope and ambit. The inherent power, as observed by the Supreme Court of India in the case of “Raj Bahadur Ras Raja – Versus - Seth Hiralal,” held that “has not been conferred 2 on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it." Lord Cairns in “Roger – Versus - Comptoir D' Escompts De Paris” stated as follows:-
"One of the first and highest duties of all, Courts is to take care that the act of the court does no injury to any of the suitors and when the expression 'Act of the court' is used it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matters up to the highest court which finally disposes of the case."
11. It was submitted that the Defendant/Applicant had been prejudiced by the said Orders and the suit property shall continue to waste away if the said property was not maintained. As such the court ought to review the said orders it issued given the fact that there now existed new evidence to the effect that the suit property was wasting away. The timelines of the termination of the dispute at the Court of Appeal may not be ascertained and by the time all parties exhaust their remedies, the suit property may be completely wasted away.
B. The Written Submissions by the Plaintiff/Respondents
12. The Law firm of Messrs. Adoli & Company Advocates filed submissions on behalf of the Plaintiff/Respondent dated 3rd June 2025. Mr. Rogers Alinyo Advocate identified the following issues for determination:
a) Whether this Court has jurisdiction to review and/or vary the order it issued on 5th December 2018 (without prejudice)?
b) Whether the Defendant had satisfied the test for reviewing and/or varying of the order issued on 5th December 2018?
c) Whether the Application dated 28th April 2025 was brought without undue delay?
d) Whether Costs to be paid by the Defendant?
13. On the first issue for determination. The Learned Counsel averred that the proceedings in this case were stayed pending the determination of “Mombasa COACA No. 4 and 8 of 2020” which appeals were still pending at the Court of Appeal in Mombasa. That the above appeals were filed against the Judgement of the High Court in Mombasa Petition Number 21 of 2010 which revoked title deeds to various parcels of land including Kwale/ Diani Complex/695 which is the subject of this suit. That at the moment unless the Court of Appeal sets aside the impugned decision of the High Court, the subject matter in this case belonged to the Leisure Lodges Limited who were the Petitioners in Petition Number 21 of 2010.
14. The Learned Counsel submitted that being that the issue of ownership of the subject matter to this case was determined by the High Court in Mombasa in Petition number 21 of 2010 and an appeal against that decision was still pending at the court of Appeal in Mombasa, this Honourable Court lacks the jurisdiction to delve into matters that would in effect give proprietary rights to the Applicant herein. That this case was stayed pending determination of the appeal and thus this court cannot interfere with the orders in place until the Court of Appeal delivers its determination.
15. It was further submitted that the Honourable Court may only have jurisdiction to review and/or vary orders whereby there was a discovery of such new and important matter or evidence which, after the exercise of due diligence, was not within the person’s knowledge or could not be produced by him/her at the time the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record.
16. According to Counsel Mr Alinyo, the Defendant/Applicant in their Application never provided the grounds that would bestow jurisdiction upon the Honourable Court. Thus, the court lacks the jurisdiction to review and/or vary the order it issued on 5th December 2018. Reference was made to the holding in the case of “Republic – Versus - Public Procurement Administrative Review Board & 2 others (2018) eKLR” Paragraph 12 it was held that:-
“Section 80 of the Civil Procedure Act gives the power of review and Order 45 of the Civil Procedure Rules sets out the rules. The rules restrict the grounds for review limiting it to the following grounds; (a) the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) on account of some mistake or error apparent on the face of the record, or
(c) for any other sufficient reason and whatever the ground there is a requirement that
the application has to be made without unreasonable delay.”
17. The Honourable Court was invited to associate itself with the above authority. Also that the Defendant/Applicant had sought for orders of review on grounds which the court does not have jurisdiction to grant.
18. On whether the Defendant had satisfied the test for reviewing and/or varying of the order issued on 5th December 2018. It was answered in the negative. The Counsel submitted that the Plaintiff had not satisfied the test for reviewing and/or varying of the order issued by the Honorable Court on 5th December 2018.
19. That the provision of Section 80 of the Civil Procedure Act, Cap. 21 gave the court unfettered discretion to review its decision. Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 sets out the grounds for review. It was submitted that one of the grounds relied on by the Defendant/Applicant in their application was that there being an error apparent on the face of record. Time and time again, courts had held that the term error on the face of record meant a mistake or an error, which was prima facie visible and never required any detailed examination.
20. It was further submitted that a review may be granted whenever the court considered that it was necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. That it would not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor could it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.
21. The Counsel stated that misconstruing a statute or other provision of law could not be a ground for review as was stated in the case of:- “National Bank of Kenya – Versus - Ndungu Njau 1997 eKLR Court of Appeal”. The court was requested to adopt the said authority and to make a finding that the Defendant/Applicant had failed in proving the grounds necessary to be granted an order to review and/or vary the orders issued.
22. It was contended that the Defendant/Applicant had not satisfied the test for reviewing and/ or varying of the order issued on 5th December 2018. The Learned Counsel placed reliance on the case of:- “Pancras T. Swai – Versus - Kenya Breweries Limited (2014) KECA 883 (KLR)” wherein it was held that:-
“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason.”
23. The Counsel held that as it was repeatedly pointed out in various Court decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act, Cap 21, which conferred an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.”
24. The court was invited to associate itself with the above authorities. That court should find that similarly in this present application the Defendant/Applicant had failed to satisfy the grounds necessary in order for the court to grant them an order for review.
25. On whether the application dated 28th April 2025 was brought without undue delay. The Plaintiff/Respondent submitted that the said application was brought with undue delay. Taking that the Court order she was seeking to review was issued on 5th December 2018.
26. The Defendant/Applicant had not been able to give a reason as to the undue delay in bringing this Application after the order was issued on 5th December 2018. Reference was made in the case of “Langer vs. Mutamba & Another (Civil Case 303 of 2011) (2023) (KLR) (Commercial and Tax) (17th November, 2023) (Ruling) “where the Nairobi High Court found a similar Application like the one herein to be unmeritorious consequently the Application was declined and dismissed with costs.” The court was urged to apply the said application.
27. Lastly, the Counsel submitted on whether costs to be paid by the Defendant/Applicant. He stated that cost to follow the event and that the successful party was entitled to costs unless exceptional circumstances exist.
V. Analysis and Determination
28. I have considered the pleadings before me which is basically the filed Notice of Motion application dated 28th April 2025, response thereto, the written submissions, the myriad of authorities ably made by the parties herein, the relevant provision of the Constitution of Kenya, 2010 and the statures.
29. For the Honourable Court to reach at a fair, reasonable and Equitable informed decision, it has condensed the subject matter into the following three (3) salient issues for determination. These are:-
a) Whether the Notice of Motion application dated 28th April, 2025 by the Defendant/Applicant has any merit whatsoever.
b) Whether the parties herein are entitled to the reliefs sought
c) Who will bear the costs of the application.
ISSUE No. a). Whether the Notice of Motion application dated 28th April, 2025 by the Defendant/Applicant has any merit whatsoever.
30. Under this sub – heading, the Honourable Court will be examining the main substratum of this application being review and/or varying of its orders as provided for by law. This powers are discretionary in nature. From the filed application dated 28th April, 2025 by the Defendant/Applicant herein, the Honourable Court has been called upon to vary and/or review its orders delivered on 5th December 2018 and to allow the Defendant/Applicant to advertise for rent, rent and lease all that property known as Kwale/Diani Complex/695 pending hearing and determination of this suit.
31. Review of a court decision is guided by the provision of Section 80 of the Civil Procedure Act Cap. 21 and Order 45 of the Civil Procedure Rules, 2010. Section 80 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
32. While Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“1. (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.”
33. There has been numerous decisions made by the Court including this one with reference to review, varying and setting aside its orders. Hence, the Honourable Court will not be re – inventing the wheel herein. However, it will just cite a few of them for ease of reference and information. In the case of “Republic – Versus - Public Procurement Administrative Review Board (Supra)& 2 others [2018] eKLR it was held: -
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”
34. Discussing the scope of review, this court in “South Sea Services Limited v Mutiso (Environment and Land Appeal 68 of 2021) [2022] KEELC 2409 (KLR) (9 May 2022) (Ruling) this Court stated that to qualify for being granted the orders for review, varying and/or setting aside a Court order for the provisions of Order 45 of the Civil Procedure Rules, 2010 to be fulfilled, the following ingredients, jurisdiction and scope are required: -
a. There should be a person who considers himself aggrieved by a Decree or order;
b. The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;
c. A decree or order from which no appeal is allowed by this Act;
d. There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or
e. 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.
f. The review is by the Court which passed the decree or made the order without unreasonable delay.
35. Be it as it may, the main issue is for the court to establish whether the threshold for review orders has been met. The Applicant has premised the application on the ground that sufficient reason has been stated for the court to grant the orders sought. Of sufficient reason, the court in the case of “Shanzu Investments Limited – Versus - Commissioner for Lands Civil Appeal No 100 of 1993” stated thus:-
‘’Any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act: and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous”
36. Additionally, in the case of:- “Republic – Versus - Cabinet Secretary for Interior and Co - ordination of National Government Ex - Parte Abullahi Said Said [2019] eKLR”, the court observed, with respect to any other sufficient reason as follows:
“A court can review a judgment for any other sufficient reason. In the case of Sadar Mohamed vs Charan Singh and Another [19] it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure [20] (writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression 'any other sufficient reason’...means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out..., would amount to an abuse of the liberty given to the tribunal under the Act to review its judgement.
37. Further in the case of:- “Tokesi Mambili and others – Versus - Simion Litsanga Civil Appeal 90 of 2001 – Kisumu” the Court of Appeal held as follows: -
“In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason. Where the application is based on sufficient reason it is for the Court to exercise its discretion.”
38. I think I have said enough to demonstrate the grounds under which an order of review may be granted. Now its to turn to the issues of the instant case and apply the said legal principles to it.
ISSUE No. b). Whether the parties herein were entitled to the reliefs sought
39. Under this Sub – heading the Honourable Court will endeavour to apply the above principles to the instant case. It is not in dispute that on 5th December 2018, the court issued orders prohibiting the Defendant/Applicant from advertising, renting, alienating, transferring or in any way dealing with the suit property known as Kwale/Diani Complex/695. Initially, the issues surrounding ownership of the suit property were dealt with by the high court in Mombasa and an appeal has been preferred before the Court of Appeal against the said decision. It was for this the reason that this suit was infact stayed pending the hearing and determination of the appeal lodged at the court of appeal.
40. The Defendant/Applicant has approached court seeking to review/set aside the orders of 5th December 2018 on the grounds that this Court has wide and unfettered jurisdiction and powers to do so. This was vigorously expressed using several authorities from our courts and international jurisdictions. Indeed, I must admit they were very convincing and persuasive precedents. The Defendant/Applicant has informed court that she has been singlehandedly be maintaining the suit property, meeting all the logistical expenses which included the running of the swimming pool, paying monthly staff salaries, electricity bills and other related expenses from the time the proceedings were stayed and the orders were issued against her in the year 2018 to date. That the property is in need of urgent renovations as there is the danger of it wasting away hence the need to allow the her put the property in use in order to earn an income from renting the premises. Despite of all these state of affairs, the Applicant is prohibited not only entering, dealing with but also from making any earnings from the suit property by the said Court order.
41. On the other hand, the Plaintiff/Respondent vehemently denies all these allegations. He has maintained that some of the houses in the suit premises are currently disposed off while others have been rented out. While the Defendant/Applicant has no proprietary rights over the sold off houses, the service charges to these rented houses are paid directly to the Defendant/Applicant. As such the issue that the Defendant/Applicant uses her own financial resources as alleged and depicted to Court to maintain the property are far from the truth and a total misrepresentation of facts. For these reasons, they urged the Court to dismiss the application for being an abuse of the due process.
42. The court is well alive of the fact an appeal pertaining the issues in this suit is before the court of appeal. In the event that the orders sought herein are granted, it will amount to the court acting out of its jurisdiction as the matter is already before a court of higher status. Indeed, the Court will be assuming the role of an appellate court over its own decision. In the given circumstances, this court cannot make any orders over the suit property unless the issues at the court of appeal have been conclusively dealt with and the matter referred back to this court. The Defendant/Applicant is not bereft of any legal options. Nay far from it. My advice will be that the Applicant prefers an appeal against the orders of 5th December 2018. Alternatively, the Applicant should be patient enough to await the outcome of the Court of Appeal in the pending appeal.
43. The Applicant herein has not demonstrated to the court that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced by her at the time when the orders were issued.
44. The Applicant has further not demonstrated to the court that there had been some mistake or error apparent on the face of the record and finally the Applicant has failed to demonstrate that the review sought was for any other sufficient reason.
45. Accordingly, I am not persuaded that the Defendant/Applicant has offered the Court any cogent grounds within the meaning of the provisions of Section 80 of the Civil Procedure Act, cap. 21 nor Order 45 Rule 1 of the Civil Procedure Rules, 2010 to warrant being granted the orders sought prayed for in the filed application hereof. In saying so, my finding is also fortified by the holding in the case of Evan Bwire – Versus - Andrew Nginda Civil Appeal No. 103 of 2000, Kisumu; [2000] KLR 8340, where the court held that:-
‘an application for review will only be allowed on very strong grounds....".
46. In other words, I reiterate, the grounds relied upon by the Defendant/Applicant whatsoever, do not fall within the scope for review. The foregoing analysis points to only one thing; that the application herein does not meet the legal threshold for review under the provision of Section 80 of the Civil Procedure Act, Cap 21 and Order 45 of the Civil Procedure Rules, 2010. Thus, it must fail.
ISSUE No. b). Who will bear the costs of the application
47. It is now well established that the issue of costs is discretionary. Costs mean the award that is granted to any party at the conclusion of a legal action or proceeding in any litigation process. The provision of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By the event it means the results or outcome of the legal action.
48. In the instant case, the Defendant/Applicant has not been able to succeed in her application dated 28th April, 2025. From the face value, the Plaintiff/Respondent who vehemently opposed the said application would be entitled to costs. However, in the given circumstances and based on the discretion of the Court, it is just fair and reasonable that each party bear their own costs accordingly.
VI. Conclusion & Disposition
49. Consequently, based on the in-depth analysis of the framed issues herein, the Honourable Court, guided by the principles of Preponderance of probabilities and the balance of convenience, proceeds to make the following specific orders. These are:-
a) THAT the Notice of Motion application dated 28th April, 2025, be and is hereby found to lack merit and thus dismissed.
b) THAT in order to staying or cause to stay abreast of the proceedings in this matter and for expediency's sake, there be a mention on 30th September, 2025, for purposes of ascertaining the actual position of the Court of Appeal Cases – COACA (Mombasa) No. 4 and 8 of 2020 and further directions.
c) THAT each party to meet its own costs of this application.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……16TH ……. DAY OF ………. JULY ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) No appearance Advocate for the Plaintiff/Respondent.
c) Mr. Mwangi Kihira, Advocate for the Defendant/Applicant.