1. Before this Court for determination is the Judgement debtors/applicant’s Application dated 19th September 2023 seeking, among other orders, that the ruling dated 10th December 2009 by which its statement of defence was struck out and the consequential judgment, be set aside.
2. The Application is grounded on the fact that the pleadings leading to the impugned Judgement and decree were never served on the Applicant, thereby resulting into a miscarriage of justice as the Judgement Debtors/Applicants did not have an opportunity of adducing their evidence and cross examining the plaintiff`s witness/testing the adverse evidence. It is further supported by the affidavit sworn on 18th September 2023 by ARJUN RUZAK, the 3rd Defendant/Applicant herein.
3. The Background of the matter is that vide a plaint dated 12th September 2008, the Decree Holder/Respondent herein instituted a suit against the Applicant herein seeking specific performance following alleged breach of a contract dated 5th February 2007.
4. The Applicant filed a statement of defence dated 11th December 2009. However, the said defence was, on an application by the Respondent, struck out by this Court’s ruling dated 10th December 2009, and a judgment accordingly entered in favour of the Decree Holder/Respondent herein.
5. Aggrieved by the court’s decision striking out its defence, the Judgement Debtors/applicants herein filed an application dated 29th April 2010 seeking to set aside the said orders. This application was, however, dismissed.
6. Following the dismissal of the Applicant’s said application of 29th April 2010, the Respondent filed Party and Bill of costs dated 29th July 2011 and proceeded to obtain a Decree and a Notice to Show Cause (NTSC) against the Applicant herein. It is this latest move by the Respondent that has led the Applicant to file the instant application, again, seeking that the Ruling of 10th December 2009, striking out its defence and the consequential judgment, be set aside. The Application also seeks other orders that:-
i. Leave be granted to the firm of Keaton & Keaton Advocates to Come on record in place of Iseme Kamau & Maema Advocates or in place of any other law firm on record for the Judgement Debtors.
ii. Kenya Broadcasting Corporation (KBC) and Kenya Revenue Authority (KRA) be joined to this suit.
iii. Kenya Revenue Authority be and is hereby directed to render true accounts of all tax obligations of the Decree Holder – Radio Africa Limited from 5th February,2007 to date.
iv. Kenya Broadcasting Corporation (KBC) be directed to render accounts of obligations/debt, if any, in respect of the Judgement debtor.
v. Leave be granted to the Judgement Debtors to file Defence and adduce their evidence in support of their case.
vi. The matter be referred to Arbitration by dint of an arbitration clause.
vii. Costs be in the cause
7. The Respondent opposed the Application vide the Replying Affidavit sworn on 19th October 2023 by PATRICK QUARCOO, the Respondent’s Director and Chief Executive Officer.
8. The application was canvassed by way of written submissions. The Applicants filed their submissions dated 7th March 2025, whilst the Respondent filed its submissions dated 14th February 2025.
Analysis and Determination
9. I have carefully perused the application filed herein, the reply thereto, and the submissions by the parties in support of their respective positions.
10. The central question for this Court’s determination is whether the ruling issued on 10th December 2009 and the subsequent judgment should be set aside, and the Judgment Debtors granted leave to defend the case.
11. The Judgment debtor/Applicant submitted that the Court has the discretion to set aside the orders granted, relying on Section 3A of the Civil Procedure Act, which grants the Court inherent powers to make orders necessary to meet the ends of justice.
12. Relying on the case of Wachira Karani v Bildad Wachira [2016] eKLR, the Applicant submitted that the fundamental duty of the Court was to do justice between the parties and that each party should be given an opportunity to present their case on its merits.
13. The Applicants contended that they were aggrieved by the ruling said ruling of 10th December 2009 and the ensuing judgment, and they were justified in seeking to have the same set aside. Citing the case of Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 Others [2013] eKLR, It was submitted that the Applicant’s non-attendance during the hearing was due to the mistake of the part of their advocate, of which they ought not to suffer.
14. Based on the above, the Applicant urged the Court to set aside the Orders of and grant the Judgment Debtors leave to defend the matter and adduce their evidence accordingly.
15. The Respondent, on the other hand, submitted that this Court lacks the requisite jurisdiction to entertain the instant application since the Ruling of 10th December 2009 (Kimaru J), which is the subject of this application, had been appealed against to the Court of Appeal in the Nairobi Civil Appeal No. 34 of 2015 and the Court of Appeal (Waki, Nambuye & Kiage JJA), upheld the same.
16. Consequently, the Respondent’s position is that this Court is functus officio and therefore lacks the requisite jurisdiction in this matter.
17. Having carefully perused the record, I have established that the account given by the Respondent reflects the correct position in this matter. It is indeed true that this Court Ruling (Kimaru J) dated 10th December 2009, which, by application, the Defendant seeks to be set aside was the subject of application in the Nairobi Civil Appeal No. 34 of 2015, and that the Court of Appeal (Waki, Nambuye & Kiage JJA), upheld the same.
18. It is an established law that the decisions of the Court of Appeal binds this Court. Granting the instant application would be tantamount to reviewing/reversing the order by the Court of Appeal, which is against the doctrine of stare decisis.
19. In the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020]eKLR, the Court of Appeal addressed the judicial hierarchical orders and stated that:-
“As we stated at the beginning of this judgment this appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice…Its latest rising is the most baffing of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such athing is quite plainly unheard of and for reasons far greater than sibling rivalry. the Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts.
Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing. It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere.”
20. The above finding of the Court of Appeal was affirmed by the Supreme Court in Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment), where the Apex Court stated that:
“55. We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction, much less those courts higher than themselves.”
21. In the premises, and having found that I am bound by the decisions of the Court of Appeal, I hold that this Court lacks jurisdiction to entertain the instant application. To grant the orders sought would amount to disregarding the constitutional hierarchy of courts as established under the Constitution.
22. Accordingly, the upshot of the foregoing is that the instant application is hereby dismissed with costs, which are assessed at Kshs. 50,000/=.
23. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Chepngeno h/b for Keaton…………for Applicant
Koitie….…………………………..for Respondent
2. The Application is grounded on the fact that the pleadings leading to the impugned Judgement and decree were never served on the Applicant, thereby resulting into a miscarriage of justice as the Judgement Debtors/Applicants did not have an opportunity of adducing their evidence and cross examining the plaintiff`s witness/testing the adverse evidence. It is further supported by the affidavit sworn on 18th September 2023 by ARJUN RUZAK, the 3rd Defendant/Applicant herein.
3. The Background of the matter is that vide a plaint dated 12th September 2008, the Decree Holder/Respondent herein instituted a suit against the Applicant herein seeking specific performance following alleged breach of a contract dated 5th February 2007.
4. The Applicant filed a statement of defence dated 11th December 2009. However, the said defence was, on an application by the Respondent, struck out by this Court’s ruling dated 10th December 2009, and a judgment accordingly entered in favour of the Decree Holder/Respondent herein.
5. Aggrieved by the court’s decision striking out its defence, the Judgement Debtors/applicants herein filed an application dated 29th April 2010 seeking to set aside the said orders. This application was, however, dismissed.
6. Following the dismissal of the Applicant’s said application of 29th April 2010, the Respondent filed Party and Bill of costs dated 29th July 2011 and proceeded to obtain a Decree and a Notice to Show Cause (NTSC) against the Applicant herein. It is this latest move by the Respondent that has led the Applicant to file the instant application, again, seeking that the Ruling of 10th December 2009, striking out its defence and the consequential judgment, be set aside. The Application also seeks other orders that:-
i. Leave be granted to the firm of Keaton & Keaton Advocates to Come on record in place of Iseme Kamau & Maema Advocates or in place of any other law firm on record for the Judgement Debtors.
ii. Kenya Broadcasting Corporation (KBC) and Kenya Revenue Authority (KRA) be joined to this suit.
iii. Kenya Revenue Authority be and is hereby directed to render true accounts of all tax obligations of the Decree Holder – Radio Africa Limited from 5th February,2007 to date.
iv. Kenya Broadcasting Corporation (KBC) be directed to render accounts of obligations/debt, if any, in respect of the Judgement debtor.
v. Leave be granted to the Judgement Debtors to file Defence and adduce their evidence in support of their case.
vi. The matter be referred to Arbitration by dint of an arbitration clause.
vii. Costs be in the cause
7. The Respondent opposed the Application vide the Replying Affidavit sworn on 19th October 2023 by PATRICK QUARCOO, the Respondent’s Director and Chief Executive Officer.
8. The application was canvassed by way of written submissions. The Applicants filed their submissions dated 7th March 2025, whilst the Respondent filed its submissions dated 14th February 2025.
Analysis and Determination
9. I have carefully perused the application filed herein, the reply thereto, and the submissions by the parties in support of their respective positions.
10. The central question for this Court’s determination is whether the ruling issued on 10th December 2009 and the subsequent judgment should be set aside, and the Judgment Debtors granted leave to defend the case.
11. The Judgment debtor/Applicant submitted that the Court has the discretion to set aside the orders granted, relying on Section 3A of the Civil Procedure Act, which grants the Court inherent powers to make orders necessary to meet the ends of justice.
12. Relying on the case of Wachira Karani v Bildad Wachira [2016] eKLR, the Applicant submitted that the fundamental duty of the Court was to do justice between the parties and that each party should be given an opportunity to present their case on its merits.
13. The Applicants contended that they were aggrieved by the ruling said ruling of 10th December 2009 and the ensuing judgment, and they were justified in seeking to have the same set aside. Citing the case of Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 Others [2013] eKLR, It was submitted that the Applicant’s non-attendance during the hearing was due to the mistake of the part of their advocate, of which they ought not to suffer.
14. Based on the above, the Applicant urged the Court to set aside the Orders of and grant the Judgment Debtors leave to defend the matter and adduce their evidence accordingly.
15. The Respondent, on the other hand, submitted that this Court lacks the requisite jurisdiction to entertain the instant application since the Ruling of 10th December 2009 (Kimaru J), which is the subject of this application, had been appealed against to the Court of Appeal in the Nairobi Civil Appeal No. 34 of 2015 and the Court of Appeal (Waki, Nambuye & Kiage JJA), upheld the same.
16. Consequently, the Respondent’s position is that this Court is functus officio and therefore lacks the requisite jurisdiction in this matter.
17. Having carefully perused the record, I have established that the account given by the Respondent reflects the correct position in this matter. It is indeed true that this Court Ruling (Kimaru J) dated 10th December 2009, which, by application, the Defendant seeks to be set aside was the subject of application in the Nairobi Civil Appeal No. 34 of 2015, and that the Court of Appeal (Waki, Nambuye & Kiage JJA), upheld the same.
18. It is an established law that the decisions of the Court of Appeal binds this Court. Granting the instant application would be tantamount to reviewing/reversing the order by the Court of Appeal, which is against the doctrine of stare decisis.
19. In the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020]eKLR, the Court of Appeal addressed the judicial hierarchical orders and stated that:-
“As we stated at the beginning of this judgment this appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice…Its latest rising is the most baffing of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such athing is quite plainly unheard of and for reasons far greater than sibling rivalry. the Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts.
Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing. It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere.”
20. The above finding of the Court of Appeal was affirmed by the Supreme Court in Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment), where the Apex Court stated that:
“55. We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction, much less those courts higher than themselves.”
21. In the premises, and having found that I am bound by the decisions of the Court of Appeal, I hold that this Court lacks jurisdiction to entertain the instant application. To grant the orders sought would amount to disregarding the constitutional hierarchy of courts as established under the Constitution.
22. Accordingly, the upshot of the foregoing is that the instant application is hereby dismissed with costs, which are assessed at Kshs. 50,000/=.
23. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Chepngeno h/b for Keaton…………for Applicant
Koitie….…………………………..for Respondent