Gerrit v Terakate Properties Limited

27th August 2007 and therefore time barred pursuant to Section 7 of the Limitation of Actions Act. b. However, the terms and conditions of the Agreement were that the Completion dates were 90 days from the date of the Agreements or date when the titles in respect of Plot numbers 316 and 317 were to be excised from LR No. 11329 in accordance to the sub division plan. c. The Defendant became the registered property of the suit property on 11th April 2022 and it is only after this date that the Plainti could maintain the suit against the Defendant. d. Unless the ruling is reviewed, the Plainti despite being in occupation would never get title documents for the two parcels. Additionally, the agreements requiring completion by the Defendant will be unenforceable and the Plainti will be at risk of losing its use and occupation of its rightful properties. 3. Pursuant to the directions issued by this court, the application was canvassed by way of written submissions. The Plainti/Applicant led written submissions dated 15th August 2023 for consideration by the court. No written submissions nor any response was placed before this court by the Defendant. 4. In the plainti’s submissions dated 15th August 2023, it was submitted that the cause of action began to run after the Completion notice had been issued and breached. Relying on Section 80 of the Civil Procedure Act and Order 45 Rule 1 the Civil Procedure Rules, it was submitted that the plainti had sucient cause by demonstrating an error apparent on the record. 5. The Adavits of service dated 11th July 2023 and 29th September 2023 sworn by Jared Kuya Aseka conrmed that indeed the Defendant was served with the application, court directions and ruling notice respectively. The Defendant did not participate nor le any documents in opposition of the application. 6. I have considered the application, evidence and submissions led by the plainti. In my view, the issue that arises for determination is whether the plainti has demonstrated sucient reason to warrant the review of the court’s ruling delivered on 16th June 2023. 7. The court has scrutinized the letter dated 30th January 2023 addressed to the defendant and duly received by defendant’s counsel on 31st January 2023. The letter states: “ Following the passage of the Completion Dates, without payment by yourselves to provide our clients with their titles as stipulated…Do Now Take Noticethat should the purchasers not receive completion documents and/or the respective titles within 21 days from the date hereof, the Purchasers shall proceed to exercise all their rights as provided in the Agreements and the law…” 8. In this instance, the prayers sought are founded upon the existence of a Sale Agreement between the parties. Where prayers for specic performance are sought, the most crucial tenet in the determination of the dispute would be when time began to run. In this instance, the letter does suce as a Completion Notice and as such time would begin to run when the breach by the Defendant occurred, which is sometime in February 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21321/eng@2023-11-02 2

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9. 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 judgment 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.” 10. Having considered the foregoing, it is evident that the court did not consider the contents of the letter dated 30th January 2023 in its ruling delivered on 16th June 2023. This is indeed sucient reason that necessitates this court to review its earlier decision. In the instant case, having carefully considered the application herein and being guided by the aforementioned authority, the court nds that the plainti has met the threshold to warrant the grant of the orders sought. 11. In the end, this court nds that application dated 1st August 2023 is merited and the same is allowed in the following terms; a. The orders issued on 16th June 2023 are hereby set aside. b. The plainti’s suit and the application dated 22nd March 2023 are reinstated for determination. c. Costs to abide the outcome of the main suit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF NOVEMBER 2023. E. K. WABWOTO JUDGE In the presence of: Ms. Sila for the Plainti/Applicant. N/A for the Defendant/Respondent. Court Assistant; Caroline Nafuna. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21321/eng@2023-11-02 3

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