'1. Before court are three applications, the first of which is a motion by the plaintiffs/ decree holders dated 31 July 2024. It is expressed to be brought under Sections 1A, 1B, 3,3A, of the Civil Procedure Act, Order 22, Rule 55,56,61, & 68 of the Civil Procedure Rules. The prayers in the motion are as follows:
“1. That this Honourable Court be pleased to certify the instant Application as Urgent.
2. That this Honourable Court be pleased to issue an Order allowing the sale of the parcels of land known as Plot No. 5905, Section I/MN; CR No. 19849, located in Shanzu Area, Mombasa, and the Parcel LR No. 1482/11/MN together with the subdivisions thereof detailed at paragraph 8 of the Supporting Affidavit hereto;
3. That in addition to the directions/terms set out by the Court in its Ruling dated 12th July 2023, the terms of sale be set as follows:
a) M/s Moran Auctioneers, KTDA Plaza, 6th Floor, Moi Avenue Nairobi, be appointed to dispose of the subject properties by way of public auction;
b) A notification of sale be issued to M/s Moran Auctioneers to conduct the sale of the subject properties with due regard to all applicable laws;
c) That the subject properties be sold by way of public auction guided by valuation reports to be prepared by M/s Musyoki & Associates or by any other certified/licensed valuer that this Honourable Court may appoint. The valuations shall not be less than one (1) year old as at the time of sale;
d) In the event the public auction fails for the first time, M/s Moran Auctioneers be allowed to proceed and re-advertise the sale of the subject properties, and thereafter proceed to sell the same by way of public auction with due regard to all applicable laws; the sale shall be subject to a reserve price of not less than 80%;
e) The plots shall be sold individually and not as a block;
f) In the event of a second or any subsequent sale by public auction, the Plaintiffs/Decree Holders be allowed to place their bid (if they so wish) whether singularly or jointly;
g) In the event of a bid by the Plaintiffs/Decree holders, the purchase price to be paid shall not be less than 100% of the current market value as per valuation not less than one (1) year old;
h) In the event the Decree Holders bid is deemed to be the successful bid, there be a set off of the bid amount as against the decretal sum that shall be outstanding as at the date of the auction sale. Any excess amount realized thereof be deposited in court for onward transmission to the Defendant/Judgement debtor; and,
i) Any other term and/or condition that this Honourable Court may deem fit and/or appropriate to impose;
4. That this Honourable Court be pleased to issue any other Order as it may deem fit and/or appropriate in the interest of justice;
5. That the costs of this application be provided for.
2. The application is supported by the affidavit of Abdulbasit Swaleh who has introduced himself in the affidavit as a director of the 1st and 2nd plaintiffs/decree holders.
3. The second application is a motion by the objector, Nedim Mohamed Ibrahim (hereinafter also referred to as simply “Ibrahim”). It is dated 2 August 2024 and it is expressed to be filed under order 51 (1), order 22 rule 51 (2) and section la, lb, 3a, 34 and 37 (2) of the Civil Procedure Act, cap. 21; the Auctioneers Act, cap 526 and Rule 12(b) of the Auctioneers Rules. The prayers in the motion are as follows:
“1. That the application be certified urgent and be heard Exparte in the first instance due to the reasons of urgency.
2. That the attachment in execution of decree made herein be raised and/or lifted.
3. That there be a stay of execution pending the hearing and determination of this application.
4. That the auctioneers be ordered to pay damages and/or such compensation as is established to the objector for the illegal, wrongful and unlawful attachment.
5. That cost of this application and objection be provided for.”
The objector has sworn an affidavit in support of the motion.
4. The third application is also a motion by the objector, Nedim Mohammed Ibrahim. The application is dated 2 August 2024. It seeks orders:
“1. That this application be certified as urgent and that the same be heard and expeditiously disposed of.
2. That this Honourable Court be pleased to grant orders joining the Applicant as an interested party to this suit.
3. That this Honourable Court be pleased to make an order for reconstruction of the original file before the hearing and determination of any pending application and direct that the Plaintiffs and the defendant adduce all the pleadings and documentation filed herein.
4. That this Honourable Court be pleased to mark the matter as compromised owing to the Mediation Agreement and Resolution dated 7th May 2017.
5. That in the alternative, this Honourable Court be pleased to set aside all proceedings conducted in this matter after 7ᵗʰ May 2017.
6. That the costs of this Application abide in this suit.”
The application is supported by Ibrahim’s own affidavit.
5. In the affidavit sworn in support of the motion objecting to the attachment of certain properties by the decree holders, Ibrahim has sworn that the order for attachment and sale of the subject properties in execution of the court decree was issued on 19 July 2023.
6. Before the said order of attachment and sale was issued, the parties in these proceedings are said to have entered in a mediation agreement dated 7 May 2017 the effect of which compromised the instant this suit, among other suits involving the same parties.
7. Ibrahim has also sworn that the mediation agreement was ordered by the court to be performed specifically in Mombasa HCCC E051 OF 2021 vide the court judgement delivered on 24 November 2023 and that according to that mediation agreement, the ownership of the attached properties was vested to Ibrahim and Abdulkarim Saleh Muhsin absolutely and therefore the defendant judgement no longer has any interest in the said properties.
8. The order of attachment, according to Ibrahim, was obtained without the decree holders disclosing material facts to the court and, therefore, the attachment is wrongful, illegal, null and void.
9. The affidavit sworn in support of the application to join Ibrahim as an interested party to this suit also revolves around the same theme of the mediation agreement. According to Ibrahim, he is the minority shareholder in the defendant company. Abdulkarim Saleh Muhsin is the majority shareholder.
10. On 7 May 2017, “the petitioner” and Ibrahim executed a mediation agreement and a resolution. Among other things that were agreed upon in the mediation agreement was that the agreement would be filed and adopted as an order of the court in this suit. Subsequently, in High Court Civil Case no. 51 of 2021, Ibrahim sued for enforcement of the mediation agreement. In a judgment delivered by this Honourable Court (Wangari, J.) on 24 November 2023, the court is said to have upheld the mediation agreement and the resolution dated 7 May 2017 and that it was binding upon Abdulkarim Saleh Muhsin, Zumzum Investment Limited and Akaba Investment Limited.
11. It has further been sworn that following the execution of the mediation agreement and resolution dated 7 May 2011, Ibrahim suffered a stroke and heart attack and that he went to receive medical treatment outside Kenya. Soon thereafter his treatment, there was covid pandemic outbreak and, therefore, he was unable to travel back to Kenya. He states that he was unaware of the progress made in this suit after the execution of the mediation agreement and the resolution and that he only came to learn of the conclusion of this matter after he filed Civil Suit no. 51 of 2021.
12. According to Ibrahim, the mediation agreement was never set aside and therefore, at all times material to this suit, the 2nd plaintiff/ decree-holder, the defendant and Ibrahim were bound by the mediation agreement and the resolution dated 7 May 2017.
13. It is Ibrahim’s position that the proceedings in this suit were conducted fraudulently since the court was not informed of the mediation agreement and the resolution which, according to Ibrahim, compromised the suit.
14. Against this background, Ibrahim says that he ought to be joined to this suit and that all the proceedings after the mediation agreement was entered should be set aside.
15. The plaintiffs/decree-holders opposed the application and a replying affidavit to this end has been sworn by Abdulbasit Swaleh, a director of the 1st and 2nd plaintiffs. According to Swaleh, the instant suit was instituted on or about 30 November 2016, over seven years ago, and Ibrahim, being a director and shareholder of the defendant/judgement debtor has all along been aware of these proceedings, and all the related matters raised in the applications before court.
16. As for the mediation agreement, Swaleh has admitted that indeed there was such an agreement but it was executed between Swaleh’s brother, Abdulkarim Saleh Muhsin and Ibrahim. However, the agreement fell through and could not take effect because Ibrahim and his wife ganged up and side-lined Muhsin in the management and control of the defendant company affairs. So, despite the agreement and the resolutions reached, Ibrahim refused or declined to comply with the terms of the agreement.
17. Further, when it became apparent that parties were not making progress, towards implementation of the resolutions reached, the parties to the agreement mutually agreed and resolved to abandon the agreement and to release each other from the rights and obligations flowing from the agreement. Accordingly, all documents and original titles that were in the custody of the mediators were released to the parties. Consequently, parties consciously decided to go back to court and to prosecute not only the instant suit but all the other cases that had been held in abeyance awaiting the outcome of the mediation efforts.
18. In their submissions, counsel for the respective parties reiterated the pleadings and depositions made in affidavits filed on behalf of their respective clients. In particular, Mr. Mwangi, the learned counsel for the objector and the proposed interested party urged that the mediation agreement is binding to all the parties involved and to that extent, the objector has a beneficial interest in the attached properties. If execution against the properties proceeds, the learned counsel submitted, it would be tantamount to undermining the judgment of Wangari, J in Civil Suit No. 51 of 2021 and also the proceedings in the Court of Appeal.
19. On his part, Mr. Muchoki, the learned counsel for the plaintiffs/decree holders urged that judgment in this matter was delivered in 2019, long before the proceedings in Civil Case No. 51 of 2021 were instituted. The first attempt to execute was way back in 2023 and, as a matter of fact, the order for attachment has not been set aside. In any event, the properties subject to attachment are the defendant company’s properties and Ibrahim cannot purport to be sharing out the company’s properties.
20. As far as the application by Ibrahim for joinder as an interested party is concerned, counsel urged that under Order 1 Rule 10(2) of the Civil Procedure Rules, a party can only join an existing suit either as defendant or plaintiff and not as an interested party.
21. Having considered the applications before court, the responses thereto and the submissions by the learned counsel, I will, in the determination of these applications, start with this particular application by the objector to be joined as an interested party in this suit since, in my humble view, it can be quickly disposed of.
22. For starters, a decree issued in this suit on 19 December 2019 shows that the case was concluded on 11 November 2019. That being the case, and except for the execution proceedings or other post judgment activities, or in appropriate cases, an application of review of the judgment under order 45 of the Civil Procedure Rules, the court is functus officio.
23. The basis upon which the application for joinder is made are questions that were either determined or ought to have been determined before this case was concluded. No new party, including the applicant in the application for joinder as an interested party, can be introduced in a suit that has otherwise been concluded.
24. As what the concept of functus officio entails, it is a question that I addressed in in Civil Case No. E025 of 2015; Abdulkarim Saleh Muhsin versus Nedim Mohammed Ibrahim & 3 Others. In my ruling, the mediation agreement which is also central in the objector’s two applications took centre stage. As it was urged in that suit, so it has been urged in the instant suit, that the mediation agreement had compromised that particular suit.
25. I noted, inter alia, that although the applicant’s application was pegged on a mediation agreement which is the same agreement to which reference is made in the objector’s applications, ostensibly compromising the suit, post judgment, there was no evidence on record of such an agreement having been entered and adopted in the case as the court’s own order.
26. The same position would appear to obtain in this case. There is no evidence that a mediation agreement was ever adopted compromising the suit. On the principle of functus officio, I held that this principle and the circumstances when it is not strictly applied was considered the High Court of South Africa In Re Securebt (Pty) Ltd versus Norris & Another (216992021) 2023 ZAGPJHC1038.
27. While relying on Firestone South Africa (Pty) Ltd v Gentiruco AG, Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298, which is an earlier decision by the Supreme Court of South Africa, the court held as follows:
“[20] The general principle is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that the court thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. “the General Principles, now well established in our law, is that once a court has duly pronounced a final Judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio; its jurisdiction having been fully and finally exercised, its authority over the subject matter has ceased”.
[21] An ambiguity or a patent error or omission has been described as an ambiguity or an error or omission as a result of which the judgment granted does not reflect the real intention of the judicial officer pronouncing it, in other words, the ambiguous language or the patent error or the omission must be attributable to the court itself.
[22] In many cases the common law principle that there are exceptions to the functus officio rule, which allows a court to vary its own judgment, have been restated. For purposes of this judgment the court will only refer to a few cases starting with the oft-quoted judgment in Firestone South Africa (Pty) Ltd v Gentiruco AG, Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) where the court, considering common law, recognised a number of exceptions to the functus officio rule. These are:
20.1 Supplementing of a judgment. The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, cost or interest on the judgment debt, which the court overlooked or inadvertently omitted to grant.
20.2 Clarification of the judgment. A court may clarify a judgment or order if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense or substance” of the judgment or order.
20.3 Correction of errors in a judgment. The court may correct a clerical, arithmetical or other error in the judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance.”
28. This Honourable Court having pronounced a final judgment or order, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. Once it pronounced a final judgment or order, it has itself no authority to go back against its order or decree either to correct alter, or supplement them.
29. That aside, no reason, or satisfactory reason, has been given why Ibrahim did not seek to be joined to the suit in his personal capacity before the suit was determined noting that he has introduced himself as being a director and shareholder of the defendant company. He has not denied that he was aware of the existence of this suit from the moment it was instituted.
30. Under Order 1 rule 10(2) of the Civil Procedure Rules, he had the window to apply to be joined either as a plaintiff or a defendant. This rule reads as follows:
The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
31. Thus, in proceedings instituted under the Civil Procedure Rules and to which this particular order applies, a party may be added to proceedings either as a plaintiff or defendant and not as an “an interested party”, the capacity or the status that the applicant seeks to assume.
32. It is also worth noting that joinder under order 1 Rule 10(2) of the Civil Procedure Rules can only be made in a suit that has not been determined. It is for this reason that the rule is clear that the court will only exercise its discretion to add a party to the proceedings if the presence of that particular party before the court “may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added”. So, if the court has “effectually and completely adjudicated and settled all questions involved in the suit” as appears to have been the case in the in the instant suit, there would be no legal basis for such an application for joinder.
33. As far as the objection to attachment is concerned, the pertinent provision is order 22 Rule 51 (1) of the Civil Procedure Rules which reads as follows:
51. (1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.
34. The basis of the objector’s objection to attachment is a mediation agreement according to which it is alleged that the objector has a beneficial interest in the attached properties or that the properties have been vested in his name. Of worth noting is the acknowledgement, in the agreement that, that it was made at the backdrop of several court cases between the parties, including the instant suit. It would be expected that if the settlement or agreement was meant to resolve these suits, then it ought, at the very least, to have been adopted as the order of the court in the respective suits.
35. By its very nature, mediation presupposes that the disputants’ intent to resolve their differences amicably, normally with the assistance of an independent third party or a mediator. From what I gather, the mediation in issue was not court sanctioned in which event the parties’ efforts may not have been nothing more than an attempt to settle the existing cases out of court. Those attempts could as well be characterised as mediation since mediation does not necessarily have to be sanctioned by the court. As a matter of fact, more often than not, mediations tend to be the disputants’ own initiative.
36. But whatever form it takes, whether it is a negotiation or a mediation (irrespective of whether it is court sanctioned), the outcome thereof does not attain the status of a binding legal obligation as to influence the proceedings before court until such a time that the agreement or settlement is endorsed and adopted by the court as its own order. Where no agreement or settlement is reached, parties proceed as if there were negotiations in the first place and it would not even be open to court to inquire into why the negotiations failed or who may have been responsible for failure of the negotiations. Parties to the mediation agreement in issue appear to have appreciated this fact because they restricted disclosure of any information and communication exchanged during the mediation.
37. For purposes of disposal of the application of the objection to the attachment all I can say about the mediation is what I said in Civil Case No. E025 of 2015; Abdulkarim Saleh Muhsin versus Nedim Mohammed Ibrahim & 3 Others that if the parties had reached a consent and a mediation agreement meant to settle the suits between the parties executed, nothing would have been easier than filing the agreement in each of those suits as the consent of the parties settling the matters. As is always the custom, the court would have endorsed the consent and adopted it as its own order in each of those matters. If that had been done, the only question would not whether a settlement was reached but whether a court order has been complied with and the properties distributed in accordance with the court order, assuming those properties are available for distribution without the involvement of the defendant company which is the rightful owner of the properties.
38. For purposes of determination of the objector’s application objecting to the attachment I am not satisfied that the mediation agreement provide a sufficient legal basis for the objector’s claim of entitlement to a legal or equitable interest in the whole of or part of the properties attached in execution of a decree.
39. Again, going by the depositions made in the replying affidavit of Mahsen AbdulKarim Saleh, the defendant company lays claim, and rightly so, on its assets. More importantly, according to that affidavit, the company has not surrendered any of its properties to any party and, if anything, the company seeks indulgence of the decree-holders to dispose of some of the properties at market value to settle the outstanding decree. This is contrary to objector’s assertion that the attached properties have been vested in his name; indeed, there is no proof that the defendant/judgment debtor’s properties have been vested in another person’s name.
40. The final application is the plaintiffs’ application dated 31 July 2024. According to the plaintiffs/ decree holders, on or about 11 November 2019, this Honourable Court entered judgement in favour of the Plaintiffs/Decree holders as against the defendant/judgement debtor in the sum of Kshs. 903,008,308.39.
41. Subsequently, a decree was issued on 19 December 2019, and costs taxed at Kshs.12,248,092.32. The judgement debtor has failed to settle the amount due which as at 30 June 2024, stood at Kshs.1,755,057,076.46.
42. In an effort to recover the decretal sum, on or about 22 June 2023 the decree holders, inter alia, moved the court for its leave to sell the defendant''s properties known as Plot No. 5905, Section 1/MN; CR No. 19849 located in Shanzu area, Mombasa, and LR NO. 1482/11/MN and the subdivisions thereof. Through the same application, the decree holders also prayed that the terms of sale be settled by the Court.
43. The motion was heard and the court delivered a ruling dated 12 July 2023 according to which the court granted an order as contemplated under order 22 rule 48 the Civil Procedure Rules, directing the attachment of the subject properties, and, in particular ordered:
“i. That the Plaintiffs to propose the terms of settlement within 14 davs from todav to the Defendant for settlement. In default the Court shall settle the same. The matter shall be fixed for directions after the Ruling on 25th July 2023;
ii. When the terms are settled, the sale shall be individual units and not as per lot;
iii. The valuation must be valid as required under the land Act;
iv. The sale must be subject to a reserve price which shall not be less than 80%. Should the judgement creditors be allowed in terms of settlement to take part in the auction, the purchase price to be paid by the judgement creditor shall not be less than 100% of the current market value as per valuation no less than 1 year old at the time of sale; and,
v. Each party to bear its costs.”
44. In light of errors that were apparent on the face of the ruling of 12 July 2023, the decree holders filed a motion dated 17 November 2023 seeking an order of review. On or about 8 February 2024, the court delivered a ruling and allowed the said application.
45. In compliance with the directions issued by the court requiring the decree holders to propose terms of sale to the judgement debtor within a period of fourteen days, on or about 15 February 2024, the advocates for the decree holders wrote to M/s Musyoki Mogaka & Co-Advocates, inter alia, seeking their comments or concurrence with the proposed terms of sale. To date there has been no response from the judgment debtor’s counsel. Yet the decretal sum remains unpaid and the plaintiffs/decree holders desire to proceed with the sale of the attachment properties to recover the decretal sum.
46. Indeed, it is not in dispute that in the ruling of 12 July 2023, the court granted the plaintiffs/decree-holders leave to attach the properties in issue and further ordered, inter alia, that the plaintiffs/decree holders to propose to the defendant/judgment debtor the terms of settlement within fourteen days from the date of the ruling and, in default, the court settles the terms. The ruling was reviewed to correct errors apparent on the face of the record on 8 February 2024.
47. The deposition by the plaintiffs/applicants that that their counsel wrote to the judgment/debtor but that the latter has not responded to their proposal has not been controverted.
48. In the replying affidavit sworn by Mahsen Abdulkarim Saleh, the defendant has stated that he is a director and shareholder of the defendant/judgment debtor. He concedes that the judgment sought to be executed is binding considering that it has neither been appealed against nor set aside. He has sworn further that the defendant’s intention is to satisfy the decree in a manner that would prevent wastage of the company''s assets and interests. As a matter of fact, the defendant is in the process of exploring an amicable mode of settling the debt with the decree-holders.
49. In effect, the plaintiff’s motion has not been opposed. In the circumstances, I am inclined to allow and I hereby allow the plaintiffs/decree-holders’ motion dated 31 July 2024. The order allowing the motion is subject to the orders made by the court in its ruling of 12 July 2024 as reviewed by the ruling of 8 February 2025.
50. As for the objector’s and proposed interested party’s applications both dated 2 August 2024, they are hereby dismissed. Parties will bear their respective costs. Orders accordingly.
'
“1. That this Honourable Court be pleased to certify the instant Application as Urgent.
2. That this Honourable Court be pleased to issue an Order allowing the sale of the parcels of land known as Plot No. 5905, Section I/MN; CR No. 19849, located in Shanzu Area, Mombasa, and the Parcel LR No. 1482/11/MN together with the subdivisions thereof detailed at paragraph 8 of the Supporting Affidavit hereto;
3. That in addition to the directions/terms set out by the Court in its Ruling dated 12th July 2023, the terms of sale be set as follows:
a) M/s Moran Auctioneers, KTDA Plaza, 6th Floor, Moi Avenue Nairobi, be appointed to dispose of the subject properties by way of public auction;
b) A notification of sale be issued to M/s Moran Auctioneers to conduct the sale of the subject properties with due regard to all applicable laws;
c) That the subject properties be sold by way of public auction guided by valuation reports to be prepared by M/s Musyoki & Associates or by any other certified/licensed valuer that this Honourable Court may appoint. The valuations shall not be less than one (1) year old as at the time of sale;
d) In the event the public auction fails for the first time, M/s Moran Auctioneers be allowed to proceed and re-advertise the sale of the subject properties, and thereafter proceed to sell the same by way of public auction with due regard to all applicable laws; the sale shall be subject to a reserve price of not less than 80%;
e) The plots shall be sold individually and not as a block;
f) In the event of a second or any subsequent sale by public auction, the Plaintiffs/Decree Holders be allowed to place their bid (if they so wish) whether singularly or jointly;
g) In the event of a bid by the Plaintiffs/Decree holders, the purchase price to be paid shall not be less than 100% of the current market value as per valuation not less than one (1) year old;
h) In the event the Decree Holders bid is deemed to be the successful bid, there be a set off of the bid amount as against the decretal sum that shall be outstanding as at the date of the auction sale. Any excess amount realized thereof be deposited in court for onward transmission to the Defendant/Judgement debtor; and,
i) Any other term and/or condition that this Honourable Court may deem fit and/or appropriate to impose;
4. That this Honourable Court be pleased to issue any other Order as it may deem fit and/or appropriate in the interest of justice;
5. That the costs of this application be provided for.
2. The application is supported by the affidavit of Abdulbasit Swaleh who has introduced himself in the affidavit as a director of the 1st and 2nd plaintiffs/decree holders.
3. The second application is a motion by the objector, Nedim Mohamed Ibrahim (hereinafter also referred to as simply “Ibrahim”). It is dated 2 August 2024 and it is expressed to be filed under order 51 (1), order 22 rule 51 (2) and section la, lb, 3a, 34 and 37 (2) of the Civil Procedure Act, cap. 21; the Auctioneers Act, cap 526 and Rule 12(b) of the Auctioneers Rules. The prayers in the motion are as follows:
“1. That the application be certified urgent and be heard Exparte in the first instance due to the reasons of urgency.
2. That the attachment in execution of decree made herein be raised and/or lifted.
3. That there be a stay of execution pending the hearing and determination of this application.
4. That the auctioneers be ordered to pay damages and/or such compensation as is established to the objector for the illegal, wrongful and unlawful attachment.
5. That cost of this application and objection be provided for.”
The objector has sworn an affidavit in support of the motion.
4. The third application is also a motion by the objector, Nedim Mohammed Ibrahim. The application is dated 2 August 2024. It seeks orders:
“1. That this application be certified as urgent and that the same be heard and expeditiously disposed of.
2. That this Honourable Court be pleased to grant orders joining the Applicant as an interested party to this suit.
3. That this Honourable Court be pleased to make an order for reconstruction of the original file before the hearing and determination of any pending application and direct that the Plaintiffs and the defendant adduce all the pleadings and documentation filed herein.
4. That this Honourable Court be pleased to mark the matter as compromised owing to the Mediation Agreement and Resolution dated 7th May 2017.
5. That in the alternative, this Honourable Court be pleased to set aside all proceedings conducted in this matter after 7ᵗʰ May 2017.
6. That the costs of this Application abide in this suit.”
The application is supported by Ibrahim’s own affidavit.
5. In the affidavit sworn in support of the motion objecting to the attachment of certain properties by the decree holders, Ibrahim has sworn that the order for attachment and sale of the subject properties in execution of the court decree was issued on 19 July 2023.
6. Before the said order of attachment and sale was issued, the parties in these proceedings are said to have entered in a mediation agreement dated 7 May 2017 the effect of which compromised the instant this suit, among other suits involving the same parties.
7. Ibrahim has also sworn that the mediation agreement was ordered by the court to be performed specifically in Mombasa HCCC E051 OF 2021 vide the court judgement delivered on 24 November 2023 and that according to that mediation agreement, the ownership of the attached properties was vested to Ibrahim and Abdulkarim Saleh Muhsin absolutely and therefore the defendant judgement no longer has any interest in the said properties.
8. The order of attachment, according to Ibrahim, was obtained without the decree holders disclosing material facts to the court and, therefore, the attachment is wrongful, illegal, null and void.
9. The affidavit sworn in support of the application to join Ibrahim as an interested party to this suit also revolves around the same theme of the mediation agreement. According to Ibrahim, he is the minority shareholder in the defendant company. Abdulkarim Saleh Muhsin is the majority shareholder.
10. On 7 May 2017, “the petitioner” and Ibrahim executed a mediation agreement and a resolution. Among other things that were agreed upon in the mediation agreement was that the agreement would be filed and adopted as an order of the court in this suit. Subsequently, in High Court Civil Case no. 51 of 2021, Ibrahim sued for enforcement of the mediation agreement. In a judgment delivered by this Honourable Court (Wangari, J.) on 24 November 2023, the court is said to have upheld the mediation agreement and the resolution dated 7 May 2017 and that it was binding upon Abdulkarim Saleh Muhsin, Zumzum Investment Limited and Akaba Investment Limited.
11. It has further been sworn that following the execution of the mediation agreement and resolution dated 7 May 2011, Ibrahim suffered a stroke and heart attack and that he went to receive medical treatment outside Kenya. Soon thereafter his treatment, there was covid pandemic outbreak and, therefore, he was unable to travel back to Kenya. He states that he was unaware of the progress made in this suit after the execution of the mediation agreement and the resolution and that he only came to learn of the conclusion of this matter after he filed Civil Suit no. 51 of 2021.
12. According to Ibrahim, the mediation agreement was never set aside and therefore, at all times material to this suit, the 2nd plaintiff/ decree-holder, the defendant and Ibrahim were bound by the mediation agreement and the resolution dated 7 May 2017.
13. It is Ibrahim’s position that the proceedings in this suit were conducted fraudulently since the court was not informed of the mediation agreement and the resolution which, according to Ibrahim, compromised the suit.
14. Against this background, Ibrahim says that he ought to be joined to this suit and that all the proceedings after the mediation agreement was entered should be set aside.
15. The plaintiffs/decree-holders opposed the application and a replying affidavit to this end has been sworn by Abdulbasit Swaleh, a director of the 1st and 2nd plaintiffs. According to Swaleh, the instant suit was instituted on or about 30 November 2016, over seven years ago, and Ibrahim, being a director and shareholder of the defendant/judgement debtor has all along been aware of these proceedings, and all the related matters raised in the applications before court.
16. As for the mediation agreement, Swaleh has admitted that indeed there was such an agreement but it was executed between Swaleh’s brother, Abdulkarim Saleh Muhsin and Ibrahim. However, the agreement fell through and could not take effect because Ibrahim and his wife ganged up and side-lined Muhsin in the management and control of the defendant company affairs. So, despite the agreement and the resolutions reached, Ibrahim refused or declined to comply with the terms of the agreement.
17. Further, when it became apparent that parties were not making progress, towards implementation of the resolutions reached, the parties to the agreement mutually agreed and resolved to abandon the agreement and to release each other from the rights and obligations flowing from the agreement. Accordingly, all documents and original titles that were in the custody of the mediators were released to the parties. Consequently, parties consciously decided to go back to court and to prosecute not only the instant suit but all the other cases that had been held in abeyance awaiting the outcome of the mediation efforts.
18. In their submissions, counsel for the respective parties reiterated the pleadings and depositions made in affidavits filed on behalf of their respective clients. In particular, Mr. Mwangi, the learned counsel for the objector and the proposed interested party urged that the mediation agreement is binding to all the parties involved and to that extent, the objector has a beneficial interest in the attached properties. If execution against the properties proceeds, the learned counsel submitted, it would be tantamount to undermining the judgment of Wangari, J in Civil Suit No. 51 of 2021 and also the proceedings in the Court of Appeal.
19. On his part, Mr. Muchoki, the learned counsel for the plaintiffs/decree holders urged that judgment in this matter was delivered in 2019, long before the proceedings in Civil Case No. 51 of 2021 were instituted. The first attempt to execute was way back in 2023 and, as a matter of fact, the order for attachment has not been set aside. In any event, the properties subject to attachment are the defendant company’s properties and Ibrahim cannot purport to be sharing out the company’s properties.
20. As far as the application by Ibrahim for joinder as an interested party is concerned, counsel urged that under Order 1 Rule 10(2) of the Civil Procedure Rules, a party can only join an existing suit either as defendant or plaintiff and not as an interested party.
21. Having considered the applications before court, the responses thereto and the submissions by the learned counsel, I will, in the determination of these applications, start with this particular application by the objector to be joined as an interested party in this suit since, in my humble view, it can be quickly disposed of.
22. For starters, a decree issued in this suit on 19 December 2019 shows that the case was concluded on 11 November 2019. That being the case, and except for the execution proceedings or other post judgment activities, or in appropriate cases, an application of review of the judgment under order 45 of the Civil Procedure Rules, the court is functus officio.
23. The basis upon which the application for joinder is made are questions that were either determined or ought to have been determined before this case was concluded. No new party, including the applicant in the application for joinder as an interested party, can be introduced in a suit that has otherwise been concluded.
24. As what the concept of functus officio entails, it is a question that I addressed in in Civil Case No. E025 of 2015; Abdulkarim Saleh Muhsin versus Nedim Mohammed Ibrahim & 3 Others. In my ruling, the mediation agreement which is also central in the objector’s two applications took centre stage. As it was urged in that suit, so it has been urged in the instant suit, that the mediation agreement had compromised that particular suit.
25. I noted, inter alia, that although the applicant’s application was pegged on a mediation agreement which is the same agreement to which reference is made in the objector’s applications, ostensibly compromising the suit, post judgment, there was no evidence on record of such an agreement having been entered and adopted in the case as the court’s own order.
26. The same position would appear to obtain in this case. There is no evidence that a mediation agreement was ever adopted compromising the suit. On the principle of functus officio, I held that this principle and the circumstances when it is not strictly applied was considered the High Court of South Africa In Re Securebt (Pty) Ltd versus Norris & Another (216992021) 2023 ZAGPJHC1038.
27. While relying on Firestone South Africa (Pty) Ltd v Gentiruco AG, Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298, which is an earlier decision by the Supreme Court of South Africa, the court held as follows:
“[20] The general principle is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that the court thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. “the General Principles, now well established in our law, is that once a court has duly pronounced a final Judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio; its jurisdiction having been fully and finally exercised, its authority over the subject matter has ceased”.
[21] An ambiguity or a patent error or omission has been described as an ambiguity or an error or omission as a result of which the judgment granted does not reflect the real intention of the judicial officer pronouncing it, in other words, the ambiguous language or the patent error or the omission must be attributable to the court itself.
[22] In many cases the common law principle that there are exceptions to the functus officio rule, which allows a court to vary its own judgment, have been restated. For purposes of this judgment the court will only refer to a few cases starting with the oft-quoted judgment in Firestone South Africa (Pty) Ltd v Gentiruco AG, Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) where the court, considering common law, recognised a number of exceptions to the functus officio rule. These are:
20.1 Supplementing of a judgment. The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, cost or interest on the judgment debt, which the court overlooked or inadvertently omitted to grant.
20.2 Clarification of the judgment. A court may clarify a judgment or order if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense or substance” of the judgment or order.
20.3 Correction of errors in a judgment. The court may correct a clerical, arithmetical or other error in the judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance.”
28. This Honourable Court having pronounced a final judgment or order, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. Once it pronounced a final judgment or order, it has itself no authority to go back against its order or decree either to correct alter, or supplement them.
29. That aside, no reason, or satisfactory reason, has been given why Ibrahim did not seek to be joined to the suit in his personal capacity before the suit was determined noting that he has introduced himself as being a director and shareholder of the defendant company. He has not denied that he was aware of the existence of this suit from the moment it was instituted.
30. Under Order 1 rule 10(2) of the Civil Procedure Rules, he had the window to apply to be joined either as a plaintiff or a defendant. This rule reads as follows:
The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
31. Thus, in proceedings instituted under the Civil Procedure Rules and to which this particular order applies, a party may be added to proceedings either as a plaintiff or defendant and not as an “an interested party”, the capacity or the status that the applicant seeks to assume.
32. It is also worth noting that joinder under order 1 Rule 10(2) of the Civil Procedure Rules can only be made in a suit that has not been determined. It is for this reason that the rule is clear that the court will only exercise its discretion to add a party to the proceedings if the presence of that particular party before the court “may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added”. So, if the court has “effectually and completely adjudicated and settled all questions involved in the suit” as appears to have been the case in the in the instant suit, there would be no legal basis for such an application for joinder.
33. As far as the objection to attachment is concerned, the pertinent provision is order 22 Rule 51 (1) of the Civil Procedure Rules which reads as follows:
51. (1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.
34. The basis of the objector’s objection to attachment is a mediation agreement according to which it is alleged that the objector has a beneficial interest in the attached properties or that the properties have been vested in his name. Of worth noting is the acknowledgement, in the agreement that, that it was made at the backdrop of several court cases between the parties, including the instant suit. It would be expected that if the settlement or agreement was meant to resolve these suits, then it ought, at the very least, to have been adopted as the order of the court in the respective suits.
35. By its very nature, mediation presupposes that the disputants’ intent to resolve their differences amicably, normally with the assistance of an independent third party or a mediator. From what I gather, the mediation in issue was not court sanctioned in which event the parties’ efforts may not have been nothing more than an attempt to settle the existing cases out of court. Those attempts could as well be characterised as mediation since mediation does not necessarily have to be sanctioned by the court. As a matter of fact, more often than not, mediations tend to be the disputants’ own initiative.
36. But whatever form it takes, whether it is a negotiation or a mediation (irrespective of whether it is court sanctioned), the outcome thereof does not attain the status of a binding legal obligation as to influence the proceedings before court until such a time that the agreement or settlement is endorsed and adopted by the court as its own order. Where no agreement or settlement is reached, parties proceed as if there were negotiations in the first place and it would not even be open to court to inquire into why the negotiations failed or who may have been responsible for failure of the negotiations. Parties to the mediation agreement in issue appear to have appreciated this fact because they restricted disclosure of any information and communication exchanged during the mediation.
37. For purposes of disposal of the application of the objection to the attachment all I can say about the mediation is what I said in Civil Case No. E025 of 2015; Abdulkarim Saleh Muhsin versus Nedim Mohammed Ibrahim & 3 Others that if the parties had reached a consent and a mediation agreement meant to settle the suits between the parties executed, nothing would have been easier than filing the agreement in each of those suits as the consent of the parties settling the matters. As is always the custom, the court would have endorsed the consent and adopted it as its own order in each of those matters. If that had been done, the only question would not whether a settlement was reached but whether a court order has been complied with and the properties distributed in accordance with the court order, assuming those properties are available for distribution without the involvement of the defendant company which is the rightful owner of the properties.
38. For purposes of determination of the objector’s application objecting to the attachment I am not satisfied that the mediation agreement provide a sufficient legal basis for the objector’s claim of entitlement to a legal or equitable interest in the whole of or part of the properties attached in execution of a decree.
39. Again, going by the depositions made in the replying affidavit of Mahsen AbdulKarim Saleh, the defendant company lays claim, and rightly so, on its assets. More importantly, according to that affidavit, the company has not surrendered any of its properties to any party and, if anything, the company seeks indulgence of the decree-holders to dispose of some of the properties at market value to settle the outstanding decree. This is contrary to objector’s assertion that the attached properties have been vested in his name; indeed, there is no proof that the defendant/judgment debtor’s properties have been vested in another person’s name.
40. The final application is the plaintiffs’ application dated 31 July 2024. According to the plaintiffs/ decree holders, on or about 11 November 2019, this Honourable Court entered judgement in favour of the Plaintiffs/Decree holders as against the defendant/judgement debtor in the sum of Kshs. 903,008,308.39.
41. Subsequently, a decree was issued on 19 December 2019, and costs taxed at Kshs.12,248,092.32. The judgement debtor has failed to settle the amount due which as at 30 June 2024, stood at Kshs.1,755,057,076.46.
42. In an effort to recover the decretal sum, on or about 22 June 2023 the decree holders, inter alia, moved the court for its leave to sell the defendant''s properties known as Plot No. 5905, Section 1/MN; CR No. 19849 located in Shanzu area, Mombasa, and LR NO. 1482/11/MN and the subdivisions thereof. Through the same application, the decree holders also prayed that the terms of sale be settled by the Court.
43. The motion was heard and the court delivered a ruling dated 12 July 2023 according to which the court granted an order as contemplated under order 22 rule 48 the Civil Procedure Rules, directing the attachment of the subject properties, and, in particular ordered:
“i. That the Plaintiffs to propose the terms of settlement within 14 davs from todav to the Defendant for settlement. In default the Court shall settle the same. The matter shall be fixed for directions after the Ruling on 25th July 2023;
ii. When the terms are settled, the sale shall be individual units and not as per lot;
iii. The valuation must be valid as required under the land Act;
iv. The sale must be subject to a reserve price which shall not be less than 80%. Should the judgement creditors be allowed in terms of settlement to take part in the auction, the purchase price to be paid by the judgement creditor shall not be less than 100% of the current market value as per valuation no less than 1 year old at the time of sale; and,
v. Each party to bear its costs.”
44. In light of errors that were apparent on the face of the ruling of 12 July 2023, the decree holders filed a motion dated 17 November 2023 seeking an order of review. On or about 8 February 2024, the court delivered a ruling and allowed the said application.
45. In compliance with the directions issued by the court requiring the decree holders to propose terms of sale to the judgement debtor within a period of fourteen days, on or about 15 February 2024, the advocates for the decree holders wrote to M/s Musyoki Mogaka & Co-Advocates, inter alia, seeking their comments or concurrence with the proposed terms of sale. To date there has been no response from the judgment debtor’s counsel. Yet the decretal sum remains unpaid and the plaintiffs/decree holders desire to proceed with the sale of the attachment properties to recover the decretal sum.
46. Indeed, it is not in dispute that in the ruling of 12 July 2023, the court granted the plaintiffs/decree-holders leave to attach the properties in issue and further ordered, inter alia, that the plaintiffs/decree holders to propose to the defendant/judgment debtor the terms of settlement within fourteen days from the date of the ruling and, in default, the court settles the terms. The ruling was reviewed to correct errors apparent on the face of the record on 8 February 2024.
47. The deposition by the plaintiffs/applicants that that their counsel wrote to the judgment/debtor but that the latter has not responded to their proposal has not been controverted.
48. In the replying affidavit sworn by Mahsen Abdulkarim Saleh, the defendant has stated that he is a director and shareholder of the defendant/judgment debtor. He concedes that the judgment sought to be executed is binding considering that it has neither been appealed against nor set aside. He has sworn further that the defendant’s intention is to satisfy the decree in a manner that would prevent wastage of the company''s assets and interests. As a matter of fact, the defendant is in the process of exploring an amicable mode of settling the debt with the decree-holders.
49. In effect, the plaintiff’s motion has not been opposed. In the circumstances, I am inclined to allow and I hereby allow the plaintiffs/decree-holders’ motion dated 31 July 2024. The order allowing the motion is subject to the orders made by the court in its ruling of 12 July 2024 as reviewed by the ruling of 8 February 2025.
50. As for the objector’s and proposed interested party’s applications both dated 2 August 2024, they are hereby dismissed. Parties will bear their respective costs. Orders accordingly.
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