MOGAYA CONTRACTORS LIMITED VS NANCHANG MUNICIPAL ENGINEERING DEVELOPMENT KENYA LIMITED

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL APPEAL NO. E1395 OF 2024

MOGAYA CONTRACTORS LIMITED………………………………………..APPLICANT

VERSUS

NANCHANG MUNICIPAL ENGINEERING DEVELOPMENT KENYA LTD……………………………………………………………………………..RESPONDENT

BETWEEN

NANCHANG MUNICIPAL ENGINEERING DEVELOPMENT KENYA LTD……………………………………………………………………………….….PLAINTIFF

VERSUS

MOGAYA CONTRACTORS LIMITED……………………………………….DEFENDANT

RULING

1. Mogaya Contractors Limited has filed a Notic of Motion Application dated 29^th November 2024 under Certificate of Urgency seeking stay of execution of the Judgment delivered on 29^th October 2024 by Hon. Zenah C. Kiboss (RM) in Milimani MCCC E3172 OF 2022 pending the hearing and determination of the said application and the intended appeal.
2. On 3^rd December 2024, the Court (Hon. Lady Justice Meoli) certified the matter urgent and fixed the matter for hearing on 3^rd February 2025 on condition that the Applicant deposits into the Court the sum of Kshs 2,000,000 (two million) by close of business on 4^th January 2025.
3. One day before the deposit of security was to be done, the Applicant moved the Court through a Notice of Motion dated 3^rd January 2025 seeking review of the earlier orders requiring the Applicant to deposit the security. This application was also brought under Certificate of Urgency. It was certified urgent through the orders of the court (Kassan, J) and fixed for hearing on 20^th January 2025.
4. Parties appeared before me, through their counsel, and argued the application through brief oral submissions. The Applicant invoked the ground of sufficient reason under Order 45 Rule 1 of the Civil Procedure Rules. The Applicant also relied on section 80 of the Civil Procedure Act. The main reason advanced by the Applicant for seeking review or variation of the orders of the court is that it cannot afford to raise the amount ordered by the court due to harsh economic times. Instead, the Applicant has proposed to pay security amounting to Kshs 800,000 which amount he argues is affordable.
5. The Applicant cited Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) (Civ) (17 February 2023) (Judgment) and submitted that security for costs should not be used to punish the other party.
6. The Respondent filed Grounds of Opposition to the Application in which it is stated that the Application is misconceived, scandalous, frivolous and an utter abuse of court process; is fatally incompetent and incurably defective and ought to be dismissed, among other grounds as shown on the face of the Grounds of Opposition dated 17^th January 2025.
7. The Respondent submitted, in opposition to the Application, that the Applicant has not demonstrated through evidence that it is unable to raise the security for costs ordered by the court; that the amount ordered by the court is reasonable; that to review those orders will cause an injustice to the Respondent and that the Applicant has not satisfied the grounds for review set out under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
8. The Respondent cited Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR to support its grounds in opposing the Application and submitted, further, that the Application has been brought in bad faith and lacks sufficient evidence to support it; that the Application offends Article 159 (2) ( (c) of the Constitution by failing to pursue other alternative methods to resolve this matter in that the Applicant did not seek out the Respondent to pursue alternative methods of reaching a consent.
9. The power of the Court to review its orders is donated to the Court by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Section 80 provides as follows:

80.  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 judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

1. Further, Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows:

45 Rule 1 (1)Any person considering himself aggrieved-

1. By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
2. 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.
3. In Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR, the court stated as follows in respect of the rules governing revies of courts orders:

“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 un reasonable delay.”

1. These are the grounds a party approaching the court for review ought to satisfy. The Applicant is relying on the ground of sufficient reason. He has pleaded incapacity to afford Kshs 2,000,000 ordered to be paid by the court as security.
2. I have considered the Application and the Grounds of Opposition. I have considered the submissions of the parties and the authorities they have cited. I wish to state that each case is unique and must be decided with this in mind. While I appreciate that the authorities of the superior courts, especially the Court of Appeal and the Supreme Court, bind this court, while those of the equal jurisdiction are persuasive in nature, no case is similar to the other and the parties in each case must satisfy the criteria to benefit from a favourable court order.
3. The Applicant has cited sufficient ground as the ground it is relying on to seek review. That sufficient ground is the Applicant’s inability to raise Kshs 2,000,000 ordered by the court as security. This court has not benefited from any evidence from the Applicant showings its inability to raise that amount safe its word for it.
4. It is not lost to this court that the Applicant took time from 3^rd December 2024 when the order for security was issued directing that it deposits security on or before 4^th January 2025. He filed the application for review a day before the time allowed lapsed.
5. Further, the Applicant did not seek the Respondent out with a view to seeking negotiations for an agreed amount, as was pointed out by the counsel for the Respondent. This could have offered the Applicant a chance at negotiations and amicable solution.
6. I am not satisfied that the Applicant has demonstrated sufficient reason for seeking review of the orders of this court dated 3^rd December 2024. Consequently, the orders remain in force. Given that the Applicant has not made the deposit on the last date allowed by the court, this Court allows the Applicant to comply with those orders within 14 days failing which the order of stay of execution shall lapse.
7. Orders shall issue accordingly.

Dated, signed and delivered on 3^rd February 2025.

S. N. MUTUKU

JUDGE