Teleposta Pension Scheme Registered Trustees v Wataari & 11 others (Environment and Land Case Civil Suit E134 of 2021) [2025] KEELC 6417 (KLR)

4. The Defendants vide Replying Afidavit dated 29th November, 2023 opposed the application on two main grounds. Firstly that the application did not meet the threshold for review as the fact of the Court of Appeal matter, was well within the knowledge of the Plaintifis all along. Secondly the Defendants argued that they have filed an appeal against the Court of Appeal decision in the Supreme Court. They asked the court not to grant the orders of vacant possession as this would render the appeal in the Supreme Court nugatory. 5. In a further afidavit filed by the Plaintifi, they reiterated the contents of the application and deposed that the Defendants have still refused to pay rent. The Plaintifis were thus entitled to seek vacant possession. 6. Counsel for the Plaintifi submitted that the Plaintifis application is anchored on Section 80 of the Civil Procedure Act as read together with order 45 rule 1 of the Civil Procedure Rules. Counsel submitted that the Court of Appeal decision having been rendered on 6th October, 2023 it could not have been shared with this court which delivered its decision on 6th July, 2023. He referred the court to the case of Republic Vs Public Administrative Review Board & 2 others (2018)eKLR 7. On the question of stay pending filing of the appeal to the Supreme Court, counsel submitted that an appeal does not amount to a stay of execution unless a formal stay is granted. 8. In their submissions dated 10th June 2024, the Defendants submitted that the Plaintifi had not met the principles for grant of review orders as provided by section 80 of the Civil Procedure Act as read with order 45 rule 1(a) & (b) of the Civil Procedure rules. He cited the case of Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya 92019) High court of Kenya Nairobi Judicial review Division Misc Application no 317 of 2018. 9. Counsel submitted that given that the Plaintifis were all along aware of the Court of Appeal case they should have brought it to the attention of the court so that the court would have awaited determination of the same before delivering Judgement. He submitted that the negligence of the applicant to notify the court should not be used to deny the Defendants the rights to enjoy the fruits of their Judgement. 10. Having considered the afidavits and the submissions the only issue for determination by the court is whether the application for review of the Judgement dated 6th July 2023 is warranted. 11. The courts power to review is anchored under Section 80 of the Civil Procedure Act which provides : “ Any person who considers himself aggrieved— 12. (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” Order 45 of the Civil Procedure Rules states as follows: Any person considering himself aggrieved— 1. (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6417/eng@2025-01-23 2

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of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other suficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. 13. Grounds upon which Orders for Review can be obtained are; there is an error or mistake apparent on the face of the record; that the Applicant has discovered new and important matters which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time the order was made; That there is suficient cause to occasion the review. 14. The issue that the court must grapple with is whether any of the above conditions have been satisfied. In the case of Mzee Wanjie & 93 others Vs A.K. Sakwa & 3 others [1982-88] 1 KAR 465, Justice Chesoni, enunciated the principles to be followed by a Court before which an application for review is made, where review is based on new and important matters. The following are the principles: a) The Applicant must show that the evidence could not have been obtained with reasonable diligence for use at the trial; b) The evidence must be such that, if given, it would probably have an important infiuence on the result of the case, though it need not be decisive; c) The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. 15. It is not in dispute that although the Plaintifis were all along aware that there was an appeal pending in the Court of Appeal, the decision dismissing the appeal was given on 6th October, 2023. It could not possibly have been produced as evidence before this court which delivered its Judgement on 6th July, 2023. 16. A consideration for review is that a party seeking an order for review must approach the Court “without unreasonable delay.” The instant application was filed on 12th October 2023. This was six days after the Judgement of the Court of Appeal on 6th October 2023. There was no delay in filing the application. 17. Further, I note that the Judgement rendered by this court was decided largely on the basis of injunctive orders which had been issued by the Court of Appeal. Now that the injunctive orders have been discharged, there is suficient cause to reconsider the courts earlier decision in light of the new evidence. The question is whether the new evidence is suficient to persuade the court to reach a difierent decision. 18. The facts of the case were clear and largely not contested. Paragraph 9 and 10 of my Judgement of 6th July, 2023 capture my analysis of the case that was before me then. I stated… “It is common ground that the plaintifi is the proprietor of the suit premises. It is also not in dispute that the Defendants have not paid rent since the year 2007. Equally there is no contention that the Defendants filed a case seeking to be given priority to purchase the suit premises which case was dismissed. They were not deterred. The Defendants filed a case in the Court of Appeal wherein certain orders were issued.” 19. ‘The bone of contention seems to be whether the Plaintifi is entitled to vacant possession of the suit premises especially in light of the orders given by the Court of Appeal. In my view the orders given by the Court of Appeal are critical in deciding this suit.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6417/eng@2025-01-23 3

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20. The issue of rent arrears is not in dispute. The issue of sale of the properties to the Defendants having been resolved by the Court of Appeal and the resultant discharge of the injunctive orders that had earlier been issued, and on which this court had relied upon to dismiss the suit, I find that there is suficient cause to review the earlier Judgement. In light of the new evidence, I find that the Plaintifi is entitled to vacant possession. Given the long period the Defendants have lived in the premises and in order to give them suficient time to relocate in a humane and dignified manner, I allow them 180 days from date of the order to voluntarily vacate the apartments failing which an order for eviction is to issue. 21. On the issue of costs, given that the Defendants were successful in the earlier decision which has now been reviewed, I order that each party will bear their own costs. 22. As such the application for review is allowed and Judgement is entered for the Plaintifi against the Defendants jointly and severally in the following terms; a. That the Defendants are ordered to give vacant possession and or vacate Apartment 3B, 5A, 7A,9A,1B,2B,5B,6B,7B,9B and 4A within 180 days. In default an order for eviction is to issue b. That the oficer commanding station -Kileleshwa Police Station is to enforce the order c. Each party to bear their own costs RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF JANUARY 2025 JUDY OMANGE JUDGE In the presence of : Ms. Mathenge for Plaintifi Court Assistant Meryline https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6417/eng@2025-01-23 4

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