Esther Aita Koin v Mathenge Gitonga & Co Advocates; Co-Operative Bank of Kenya Limited & another (Interested Parties)

3. The application was premised on the grounds that, the applicant was in occupation of the suit property as the lawful and registered owner of the same, the applicant was condemned unheard as he was not served with the application dated July 19, 2022which led to the issuance of the orders that he seeks to have them reviewed, the applicant was only joined as a party onMarch 9, 2023and hence no substantive orders could be issued against him when he was not a party to the suit, the orders purported to evict the applicant from the property when there was no such prayer in the subject application and that the court has purported to issue nal orders before hearing the merits of the case. The court was also informed that the said application has been brought without undue delay. 4. During the hearing of the application, Counsel for the 2nd interested party informed the court that no response had been led and the court should consider the application as unopposed and proceed to grant the prayers sought. However, on record there was a replying adavit sworn by Esther Aita Koin the plainti herein on June 6, 2023. There were also grounds of opposition led by the Plainti dated June 6, 2023. 5. I have considered the application together with the replying adavit and grounds of opposition led by the Plainti. The main issue for determination is whether the applicant has met the threshold for review. 6. The 2nd interested party argues that he purchased the suit property L.R. 209/12221/57 House No. 100 Five Star Phase 1 South C at a Public Auction conducted by M/s Leakey’s Auctioneers on behalf of Co-operative Bank on November 25, 2022 and he took possession of the said house and has been there ever since. That he was joined to this suit on March 9, 2023 and that the orders issued by this court did not direct that he be evicted. He also averred that he has no issue with the preservation of the suit property pending hearing of the suit. He however stated that he has a problem with orders restraining him from leasing and renting or dealing with the property since there is no clarication as what amounts to dealing with the property. 7. The plainti on the other hand opposed the application and sought for the same to be struck out for the reasons that the 2nd interested party has led a Notice of Appeal which notice divests the jurisdiction of the court. The said Notice of Appeal has never been withdrawn. It was also stated that what was sought for review is a substantial order of the court not made in error which is manifesting defective and the available remedy was just to pursue an appeal. 8. Theplainti also argued that the 2nd interested party has never been the benecial or ostensible owner of the suit premises. The plainti deposed that she was evicted despite clear orders issued by this court. It was also averred that the court delivered tis orders on March 9, 2023 simply restraining the 2nd interested party from interfering with the suit premises pending determination of the suit which according to her interpretation restores the status quo prior to the malicious evictions at the instance of the 2nd interested party. The plainti also averred that through her advocates, she wrote a letter to the OCS Akila Police Station seeking assistance to be restituted to the house pending determination of the suit because the 2nd Interested Party closed it up and left. 9. It was also argued that the 2nd interested party had led a Notice of Appeal and hence therefore cannot pursue review at the same time. 10. The plainti contends that the 2nd interested party’s application is an abuse of the court process in that the 2nd interested party is pursuing a review when he has already led a Notice of Appeal. I have considered this argument, however the Court of Appeal in the case of Multichoice (Kenya) Limited v Wananchi Group (Kenya) Limited & 2 others (2020) eKLR settled the issue when it held that ling https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18367/eng@2023-06-22 2

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of a Notice of Appeal perse is not a bar for one to pursue a review and this court is bound by the said decision. As such I am unable to uphold the Plainti’s position to the contrary. 11. On the second issue, whether this court should review its orders issued on March 9, 2023. The 2nd Interested Party appears to be complaining that the court condemned him unheard when it issued the orders of March 9, 2023 and further that the said orders were ambiguous as it does not clarify what amounts to dealing with the property. 12. In Salama Mahmoud Saad v Kikas Investment Limited & anor [2014] eKLR review of court orders is discussed as follows; “ …Before a review is allowed in the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sucient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.” 13. I have also considered the ground of sucient reason. In Michael Mungai v Ford Kenya Elections & Nominations Board & others & 2 others [2013] eKLR, the ve judge bench discussed the grounds of “sucient reason” as follows: “ A decree or order may also be reviewed for any sucient reason. In our opinion, sucient reason can only be deduced from the facts and circumstances of a particular case before the court. For example, in the case of Ngororo v Ndutha & another[1994] KLR 402 the Court of Appeal held that any person, though not party to a suit, whose direct interest is aected by a judgement is entitled to apply for review. Such a reason can be ‘sucient reason’ for the purposes of Order 45 Rule 1(1) for reviewing a decree or an order. An applicant must indeed place convincing evidence before a court for the court to be satised that there is sucient reason to review its decision. 14. Paragraph 9 of the ruling delivered on March 9, 2023 clearly conrms that the 2nd interested party was served and led his written submissions in respect to the applications dated July 19, 2022, August 1, 2022 and October 14, 2022. His written submissions were dated January 12, 2023. Hence therefore the 2nd Interested Party cannot claim to have been condemned unheard before issuance of the said orders. The court clearly considered the application and granted the orders sought after considering the responses and submissions that were led by all the parties therein. 15. In view of the foregoing, the court hereby nds that the Application dated March 21, 2023 has not met the threshold to warrant the review of the court orders and the same is hereby dismissed with no orders as to costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JUNE 2023. E.K. WABWOTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18367/eng@2023-06-22 3

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In the presence of Mr. Sichangi for Plainti.** N/A for the Defendant. Mr. Owour Chacha for 1st Interested Party. Mr. Kimani for 2nd Interested party. Court Assistant – Caroline Nafuna. elc ase no e074 of 2022 ruling 0 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18367/eng@2023-06-22 4

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