TITO THEURI GAITA & ANR VS GODHARD THEURI WAIRAGU & ANR

'

RULING

1. By the Notice of Motion dated 8th September, 2023, David J. Wambugu Theuri (the Applicant) prays for Orders as follows:
1) That this Honorable Court may be pleased to reinstate the judgment delivered by this court on 30.6.2023 and reverse its orders dated 11.10.2022;

2) That this Honorable Court may be pleased to remove the Applicant’s name from the application dated 18.7.2022 because the Applicant is not part and parcel of that application and he was not consulted when it was filed; and

3) That the costs of this application be costs in the cause.

2. The application which is supported by an Affidavit sworn by the Applicant is premised on the grounds that:

a) The 1st Respondent herein who is also the 1st Plaintiff in the Originating Summons did not consult the Applicant when filing the application dated 18.7.2022;

b) The Applicant herein is satisfied with the judgment delivered by this court on 30.6.2022 and the court may reinstate the said judgment and cancel the order made herein on 11.10.2022; and

c) The said judgment is in favour of the Applicant and therefore he cannot be part and parcel of the application dated 18.7.2022 wherein he is named as the 2nd Applicant.

3. Tito Theuri Gaita (the 1st Respondent) is opposed to the application.  In his Replying Affidavit sworn and filed herein on 31st October, 2023, the 1st Respondent avers that court orders are not made in vain and they should be obeyed as dictated by the law.  The 1st Respondent avers that the present application amounts to an abuse of the court process and asserts that if the Applicant is not satisfied with the orders issued on 11th October, 2022, he should seek remedy in the Court of Appeal.
4. I have carefully perused and considered both the application as well as the response thereto.  I have similarly considered both the oral and written submissions placed before me by the parties.
5. By his application before the court, the Applicant has urged the court to set aside the order issued herein on 11th October, 2022 and to thereby reinstate the judgment delivered by this court on 30th June, 2022.  It is the Applicant’s case that he was satisfied with the judgment and that the 1st Respondent did not consult him when he applied to set aside the judgment.
6. A perusal of the record herein reveals that by a Notice of Motion application dated 18th July, 2022, the 1st Respondent herein had urged the court to review and set aside the judgment delivered herein on 30th June, 2022.  That application was fixed for hearing on 19th September, 2022 in the presence of both the Applicant and the 1st Respondent herein.  Given the fact that the Defendants – Godhard Theuri Wairagu and Eutichus Marekia Wairagu had not been served, the court directed that they be served for hearing inter-partes on 11th October, 2022.
7. The record further reveals that on the said 11th October, 2022, when the matter came up for hearing all the parties were present.  Mr. Tito Theuri Gaita (the 1st Respondent herein) acting in person then asked the court to allow the application for review of the judgment.  In response, Ms. Wothaya Learned Advocate holding brief for Mr. Waweru Macharia Advocate for the Defendants informed the court that they did not intend to file a reply to the application.
8. The Applicant herein David Wambugu was present in court in person as the 2nd Applicant.  Asked about the application by the court, the record captures his response as follows:
“The 2nd Applicant:
I do not want the case reviewed.  It is 90% correct.
But I am not opposing the application.  The Applicant is my son.”

9. On account of the fact that the application was not opposed by all the parties in the matter, the court allowed the application dated 18th July, 2022 as prayed.
10. More than one (1) year later, the Applicant instituted this application purporting that he was not consulted and that he was not part and parcel of the application.  As the record reveals, the Applicant was present in court and did not make any attempt to oppose the application. In that respect, I agree with the 1st Respondent that the present application is an afterthought and without any basis.
11. The upshot is that I did not find any basis upon which to review the orders issued herein on 11th October, 2022.  The Motion dated 8th September 2023 is misconceived and without any merit.  I dismiss the same with no order as to costs.

'