Maarifa Developers Ltd & another v Middle East Bank Ltd & 5 others

2. Upon service of the Notice of Motion applications the Plaintis led a further adavit sworn on 1st October, 2024. On the Amended Notice of Motion application dated 1st October, 2024 the Plainti responded through a Replying Adavit 11th October, 2024 and yet a further adavit sworn on 22nd October, 2024. The Plainti led a further adavit sworn on 29th October, 2024. 3. The Honorable Court will deal with these coupled applications though distinctly but simultaneously and deliver an omnibus Ruling herein. It is instructive to note that this matter which fundamentally on the legal ownership of the suit property led by the Plainti in the year 2006 – close to nineteen (19) years today has never been set down for full trial todate!! On the contrary, the said proceedings has been marred by series of interlocutory applications on one issue or the other. In the interest of Justice, Equity and Conscience, it is high time that the matter is expeditiously heard and determine in one way or the other in our adversarial system. Being informed by the legal maxim that “Justice delayed is Justice Denied” and “Litigation must come to an end”, I strongly propose that this should happen in the next 180 days from this date. II. The Amended Notice of Motion application dated 1st October, 2024 4. The 1st Defendant/Applicant brought this application under the provisions of Article 50 of the Constitution of Kenya, 2010, Sections 48(1), 152 and 301(1) of The Insolvency Act, Order 51 Rule 1 and 15 of The Civil Procedure Rules, 2010, Sections 1A & 1B of The Civil Procedure Act Cap. 21 Laws of Kenya and all enabling Provisions of The Law. 5. The 1st Defendant/Applicant sought for the following orders:- 6. a. That this Honourable Court be pleased to set aside the ex parte Orders made on 20th February, 2024. b. That this Honourable Court be pleased to make any other or such further orders as it may deem t and just to grant. c. That costs of this application be provided for. The application by the 1st Defendant/Applicant is premised on the grounds, testimonial facts on the face of the application and averments made out under the 13 Paragraphed supporting adavit of Kennedy Ogero Mokaya an Advocate of the High Court of Kenya and in conduct of the 1st Defendant herein. The Deponent averred that:a. On 16th October, 2023, this Honourable Court made a number of orders one of which was that the Plainti was to le and serve a fresh application seeking for leave to le further amended Plaint within 21 days. b. The Plainti led his application on 14th November, 2023 which clearly was outside the stipulated period and therefore in breach of the express orders of 16th October, 2023. c. On 13th February, 2024 the matter was scheduled for pre-trail hearing but the: Honourable Court noted that the Plainti had not complied with the orders of 16th October, 2023 and consequently directed that the matter be mentioned on 21st February, 2024 for further directions and on the way forward. d. On 21st February, 2024 the Honourable Court delivered a ruling and proceeded to allow the Plainti's Notice of Motion Application dated 14th November, 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 2

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e. The Defendant was not given an opportunity to le its response to the Plainti's said application of 14th November, 2023. f. The Defendant stood to be extremely prejudiced in its Defence of the case herein and in particular on the inclusion/joinder of Maarifa Developers Limited as one of the Plaintis in the case. g. In the interest of justice the orders of 21st February, 2024 should be set aside and the Defendant/ Applicant be given an opportunity to le its response to the Plainti's Application of 14th November, 2024. h. The Plainti, Austin Salmon Kitololo (‘Kitololo’) was adjudged Bankrupt on 29th September, 2023 in Insolvency Cause no. E023 of 2023 by the High Court of Kenya. i. This suit was automatically stayed on 29th September 2024 under Section 48 (1) of the Insolvency Act. j. Under Section 48 (2) of the Insolvency Act, any power that Kitololo could have exercised in this suit in pursuit of his alleged debts vested in the Ocial Receive as from 29th September 2024. k. Kitololo had no authority to make an application herein on 14th November, 2023 nor to seek directions in this suit on 16th October, 2023. l. No application has been made to the High Court of Kenya by anyone to allow this suit to continue, nor has the High Court made any Order under Section 48 (2) of the Insolvency Act to this eect. m. Kitololo was not permitted under Section 152 (1) of the Insolvency Act to carry on or take part in the management or control of any business which includes his management of Maarifa Developers Limited as a director of that company. n. It was a criminal oence under Section 301 (1) of the Insolvency Act for Kitololo to act as Director of Maarifa Developers Limited or for failing to comply with Section 152 of the Insolvency Act. o. All acts and deeds of Kitololo in this suit since 29th September 2023 were tainted with illegalities. p. The seeking of directions of this Honourable Court on 16th October, 2023 and making of and obtaining orders based on the said application dated 14th November, 2023 were all obtained by non-disclosure of material facts and deceiving this Honourable Court: and q. Accordingly all orders made in this suit since 29th September 2023 were null and void. III. The responses by the Plaintis 7. The 2nd Plainti herein, Austin Salmon Kitololo, opposed the application dated 1st October, 2024 through ling a 18 Paragraphed Replying Adavit sworn on 11th October, 2024 as follows:a. The Honourable Court issued strict timelines for the ling of the instant Amended Application on 25th September, 2024 to wit that the same would be led and served by close of business the same date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 3

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b. Further to the above, the Applicant in blatant disregard of the said court order, only led the Amended Application on 1st October, 2024. The same was also not served upon his advocates, who only stumbled upon it on the CTS. c. The deponent of the Amended Application, Kennedy Ogero Mokaya, being an advocate, had deponed on highly contentious issues; an act abhorred by this Honourable Court and by the law in general. d. This Honourable Court delivered Ruling on 25th September 2024 in respect of yet another of the Defendant's application dated 9th May 2024 that sought to have the suit dismissed owing to his bankruptcy status. e. While dismissing the application dated 9th May 2024, this Court found that he had the capacity to prosecute the instant suit at all times before the appointment of the receiver and for emphasis, he reproduced Paragraph 14 of the said ruling herein thus: “ I do agree with the 1st Plainti nothing prevented the 2nd Plainti from continuing and prosecuting the suit on his behalf and in his capacity as the director of the 1st Plainti until the appointment of someone in law (Bankruptcy Trustee) who would take up/maintain the suit for the benet of his creditors, if he deems it t” f. The Defendant’s Amended Application dated 1st October 2024 in as far as it aimed to impugn the Deponent’s involvement in the prosecution of the suit prior to the appointment of the Bankruptcy Trustee, was moot and “Res judicata”. g. In as far as the Defendant's Amended Application seeks to set aside the ruling and orders of this Honourable Court of 20th February, 2024, that at Paragraph 5 of the said ruling the Honourable Court recorded that Mr. Mokaya Advocate deliberately refused, ignored and/or failed to respond to the impugned application (that had sought leave to amend the furtherfurther Amended Plaint). For emphasis, he reproduced the said paragraph of 5 of the Ruling delivered on 20th February 2024 thus:“ Despite of having been properly served with the application, Mr. Mokaya informed Court that he deliberately refused, ignored and/or failed to respond to it essentially on the grounds that the said application was a nullity and void having breached the pre-condition spelt out from the afore-stated Ruling by this Honourable Court on 16th October 2023” h. It was therefore absurd for Counsel to claim that he was denied a right to be heard yet he deliberately chose not to respond to the then impugned application. i. It was noteworthy that after the delivery of the Ruling of 20th February 2024, Counsel sought and was granted leave to appeal against the orders of the court and he thereafter led a notice of appeal dated 5th March 2024. As far as he was concerned, no substantive appeal has been led to date. j. Related to the above, upon the delivery of the Ruling of 25th September 2024, Mr. Mokaya Advocate again sought and obtained leave to appeal against the orders of the court. It was then, that Mr. Mokaya Advocate dusted o and sought to amend yet another application (the instant application) seeking to re-litigate over the very issue that formed the subject of his application of 9th May 2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 4

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k. The Defendant through Mr. Mokaya, Advocate, who had at all times swore all adavits in numerous and incessant applications, sought to forestall the instant suit through probating and reprobating technicalities. l. He joined issues and fully relied on the averments, dispositions and imported of the Replying Adavit sworn by Owen Koimburi (1st Interested Party) on 5th July 2024 and particularly paragraph 9 where he stated thus: “ To that end, I sought and obtained approval of court to allow the 2nd Plainti to proceed with the prosecution of the suit, in execution of my mandate under order 24 rule 6 of the civil procedure rules.” m. The instant application dated 1st October, 2024 was only calculated curtail the Deponent’s constitutionally embedded right to be heard and it seems the Defendant was hellbent on employing all manner of time wastage tactics to ensure that the matter never goes for full trial. n. He was at the time of swearing the adavit 83 years of age and this matter had taken out about 18 years o my life and was yet to go for full trial. Surely, the wheels are justice might grind slowly but this matter has been mark-timing for the last decade and he implored this Honourable Court to hear the matter substantively; for justice to be served. o. He prayed that the amended Application dated 1st October 2024 was dismissed with costs to pave way for the expeditious disposal of this very old matter. IV. The Notice of Motion application dated 11th October, 2024 by the Plaintis 8. The Plaintis brought the application under the provision of Sections 1A, 1B, 3A, and 80 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 45, Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 9. The Plaintis sought for the following orders:- 10. a. Spent. b. That this Honourable Court be pleased to partially review its Ruling dated 18th September 2024 and delivered virtually on 25th September 2024 by the Honourable Mr. Justice L.L. Naikuni. c. That this Honourable Court be pleased to review orders (b), (c) and (d) of the Ruling dated 18th September 2024 and delivered virtually on 25th September 2024 allowing David Mukii Mereka to be joined as the 1st Interested Party to these proceedings and in place of the aforesaid orders, the Court be pleased to dismiss the Notice of Motion Application dated 20th May 2024 with costs to the Plaintis. d. That the costs of this Application be borne by the said 1st Interested Party. The application was premised on the grounds, testimonial facts and the averments made out under the 14 Paragraphed annexed adavit of Eng. Austin Salmon Kitololo, the 2nd Plainti herein. The Deponent averred that: i. On 25th September 2024, the Honourable Mr. Justice L.L. Naikuni made a Ruling on twin applications - the Defendant’s Application dated 9th May 2024 and the 1st Interested Party’s Application dated 20th May 2024, issuing the following nal orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 5

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a. That the Notice of Motion Application dated 9th May 2024 by the 1st Defendant be and is hereby found to lack merit and hence dismissed with costs. b. That the Notice of Motion application dated 20th May 2024 by the Interested Party is found to have merit and is hereby allowed with no order as to costs. c. That an order be and is hereby issued joining David M. Mereka as the 1st Interested Party in these proceedings and is granted leave to le Defence and a Counter - Claim if any. d. That an order do and is hereby issued for leave to M/s. Mereka & Company Advocates to formally come on record for the 1st Interested Party. e. That for expeditious sake, this matter be xed for hearing on 3rd, 16th and 17th October 2024 respectively. f. That there shall be no order as to costs. Annexed in the adavit and marked as “ASK - 1” was a copy of the Ruling dated 18th September 2024 and delivered virtually via Microsoft Teams on 25th September 2024 by the Honourable Mr. Justice L.L. Naikuni ii. However, it was apparent on the face of the record, and particularly from a reading of Paragraph 2 of the said Ruling, that in allowing David Mukii Mereka to be joined as an interested party to these proceedings, the Honourable Court inadvertently failed to sight and/or consider the documents led by the 1st Plainti and Owen Koimburi Njenga, the 2nd Plainti's Bankruptcy Trustee in opposition to the Interested Party’s Joinder Application. iii. The Deponent conrmed that FCPA Owen Koimburi Njenga was appointed to administer his estate following a Judgment of the Honourable Lady Justice Njoki Mwangi dated 29th September 2023 in the Bankruptcy proceedings initiated by David Mukii Mereka in Milimani HCCOMMIP/E023/2022 - Mereka & Co. Advocates – Versus - Eng. Austin Salmon Kitololo T/A Kitololo Consultants. Annexed in the adavit and marked as “ASK - 2” a copy of the Judgment of the Honourable Lady Justice Njoki Mwangi dated 29th September 2023 in Milimani HCCOMMIP/E023/2022-Mereka & Co. Advocates – Versus - Eng. Austin Salmon Kitololo T/A Kitololo Consultants and the resultant Bankruptcy Order dated 10th November 2023. iv. The 1st Plainti led Grounds of Opposition dated 30th May 2024 through the law rm of Messrs. Kihiko N & M Law Advocates LLP.Annexed in the adavit and marked as “ASK - 3” was a copy of the 1st Plainti's Grounds of Opposition dated 30th May 2024. v. On his part, the Bankruptcy Trustee led his Notice of Appointment dated 24th June 2024 through the law rm of Messrs. Zahra Legal Advocates and subsequently opposed David Mukii Mereka’s Joinder Application dated 20th May 2024 by way of a Replying Adavit sworn on 5th July 2024. Annexed herein and marked as “ASK - 4” and “ASK - 5” respectively were copies of the Notice of Appointment dated 24th June 2024 by the Law rm of M/s. Zahra Legal Advocates and the Bankruptcy Trustee’s Replying Adavit sworn on 5th July 2024) in the following terms: a. By a Judgment of the Honourable Lady Justice Njoki Mwangi dated 29th September 2023 in Milimani HCCOMMIP/E023/2022 - Mereka & Co. Advocates – Versus - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 6

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Eng. Austin Salmon Kitololo T/A Kitololo Consultants, the 2nd Plainti was adjudged bankrupt. A Bankruptcy Order was subsequently made on 10th November 2023. b. Subsequently, Owen Koimburi Njenga was duly appointed by the Ocial Receiver as the Bankruptcy Trustee vide a letter dated 8th March 2024. Annexed in the adavit and marked as “ASK - 6” and “ASK - 7” respectively are copies of correspondence between the Interested Party, the Ocial Receiver and the Bankruptcy Trustee and the Ocial Receiver’s Appointment letter dated 8th March 2024. c. Following that appointment, the Bankruptcy Trustee published a notice dated 18th April 2024 on the Daily Nation advertising the Bankruptcy Order and inviting creditors of the 2nd Plainti to submit proof of debt(s).Annexed in the adavit and marked as “ASK - 8” was a copy of the notice dated 18th April 2024 on the Daily Nation advertising the Bankruptcy Order and inviting creditors to submit proofs of debt(s). d. By virtue of the said appointment, the said Owen Koimburi Njenga assumed his role as a Bankruptcy Trustee which role includes the protection of the interests of all creditors of the 2nd Plainti, including the Interested Party herein-David Mukii Mereka. e. The Bankruptcy Trustee, through the Ocial Receiver, now has the exclusive authority to manage the 2nd Plainti’s estate and allowing the Interested Party to join these proceedings would be undermining the Bankruptcy Trustee’s roles and responsibilities under the Insolvency Act, Chapter 53 of the Laws of Kenya especially when the said Bankruptcy Trustee has already elected to allow the 2nd Plainti continue this suit, thereby eectively ratifying all actions taken by the 2nd Plainti in progression thereof. f. By way of a Notice of Motion Application dated 24th June 2024, the Bankruptcy Trustee sought and obtained the approval of the Nairobi High Court by way of an Order dated 27th June, 2024 in Milimani HCCOMMIP/E023/2022-Mereka & Co. Advocates – Versus - Eng. Austin Salmon Kitololo T/A Kitololo Consultants to allow the 2nd Plainti, Eng. Austin Salmon Kitololo to continue and prosecute this suit to its logical conclusion.Annexed in the adavit and marked as “ASK - 9” and “ASK - 10” respectively are copies of the Bankruptcy Trustee’s Notice of Motion Application dated 24th June 2024 a copy of the ensuing Order dated 27th June 2024 by the Honourable Mr. Justice Visram Aleem Alnashir. g. In view of the above, David Mukii Mereka had failed to meet the legal threshold for joinder in these proceedings. In any case, his interest, like that of any other creditor, was already protected by the Bankruptcy Trustee. h. David Mukii Mereka had no identiable stake in this matter and allowing him to join the proceedings would conict with the provisions of the Insolvency Act and be tantamount to a disruption of this case that bears the full potential of unlocking the 2nd Plainti's assets for the benet of not only the said Interested Party but also other creditor(s), if any. i. As such, the Bankruptcy Trustee opined that the Interested Party’s Notice of Motion Application dated 20th May 2024 was premature, unmerited, unnecessary and ripe for dismissal with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 7

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vi. Further and in any event, the Interested Party has conceded to abandon his defective application vide a letter dated 9th August 2024 shared with the parties’ advocates. The said letter enclosed a proposed consent dated 2nd August 2024.Annexed in the adavit and marked “ASK-11” were copies of the letter dated 9th August 2024 and proposed consent dated 2nd August 2024. vii. In the circumstances, the inadvertent failure by this Honourable Court to consider the documents led by the 1st Plainti and the Bankruptcy Trustee in response to the interested Party’s Joinder Application constitutes an error apparent on the face of the record, which this Honourable Court has powers to rectify under the provision of Section 80 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010. viii. The above matters constitute sucient reasons for this Honourable Court to partially review its Ruling insofar as it relates to the Interested Party’s Notice of Motion Application dated 20th May 2024. ix. The Deponent conrmed that he had presented this review Application without unreasonable delay, with any subsisting delay having been occasioned by having to wait for a certied copy of the Ruling to be availed by this Honourable Court and it was, therefore, in the interest of justice that the orders sought in the Notice of Motion Application led herewith are allowed. x. Further, the Plaintis stand to suer prejudice if this Application was not allowed. xi. The present review Application had been brought without unreasonable delay. V. The Plaintis’ Further Adavit 11. The Plaintis through a 16 Paragraphed further Adavit sworn by Austin Salmon Kitololo, the 2nd Plainti herein sworn on behalf of the 1st Plainti on 29th October, 2024 where the Deponent averred that:a. Despite the Court granting the Defendant 3 days to le and serve its further adavit, the Defendant only led the same 5 days later and only served his advocates upon being prompted to do so. b. Mr. Mokaya swears an omnibus further adavit on 22nd October 2024, premised on an grossly erroneous misapprehension of Section 48 of the Insolvency Act, where he verbosely regurgitates and re-litigated the same issue of capacity as already appears in the further adavit of 1st October 2024 but goes ahead to make arguments that go well over and above the purview of his amended application dated 1st October 2024 which only sought that the Court sets aside the ex-parte orders made on 20th February 2024. c. The averments and issues relating to the matter, the propriety of the claim by the 1st Plainti go over and above the purview of the amended application which sought to set aside. Reference to the issues and matters that happened before the proceedings leading up to issuance of the orders of 20th February, 2024 are only meant to convolute and muddy these proceedings unnecessarily. d. The Defendant should limit himself to reasons why he sought to have the orders of 20th February, 2024, which were prompted by a by an application of 14th November 2023 that he deliberately refused to respond to, set aside. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 8

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e. The Defendant’s constant protestations through the many interlocutory applications could be explained by the contents of ground of the Amended Application dated 1st October 2024; that the Defendant stood to be extremely prejudiced in its Defence of the case herein and in particular on the inclusion/joinder of Maarifa Developers Limited as one of the Plaintis in the case. f. How would joinder of a Plainti really prejudice the Defendant? Is it not the Plainti's case? wasn’t the Plainti (and indeed any party) not allowed to enjoin parties whom they believe will enable the court make a proper determination of the dispute? g. Seemingly, it matters not, to the Defendant whether he had been adjudged bankrupt but whether they could use the fact of bankruptcy to ensure that the joinder of the 1st Plainti was undone by impugning the Deponent’s capacity to seek and obtain leave to enjoin the 1st Plainti into the suit. Does not that in itself amount to an abuse of the court process? h. The protestations that he did not have capacity and that all proceedings after he had been adjudged bankrupt are null and void for the reason that any further proceedings vested in the ocial receiver (paragraph 5 of the further adavit of Kennedy Ogero Mokaya), were with all due respect, res judicata and unmaintainable. i. The said protestations were “res judicata” because:i. the same issues were raised in the Defendant’s Application dated 9th May 2024 where he sought that the suit be dismissed on the ground that Mr. Kitololo in his own capacity and as a director of Maarifa Developers had no capacity to sustain, continue and prosecute the suit (ground c of the Application dated 9th May 2024). ii. The court rendered ruling on the Application dated 9th May 2024, on 18th September 2024 where the Court in formulating issues for determination, posed the question as to whether the Notice of Motion application dated 9th May 2024 on the capacity of the 2nd Plainti to sue having been adjudged bankrupt was merited. iii. The court proceeded to answer the question and in the ensuing Paragraphs 13, 14 & 15 of the Ruling delivered on 18th September 2024, the Court found in the armative that nothing prevented the 2nd Plainti from continuing to prosecute the suit (on his behalf and in his capacity as a director of the 1st Plainti) until the appointment of someone in law (Bankruptcy Trustee) who would take up/maintain the suit for the benet of the creditors, if he deems if t. iv. The Defendant was prevented from litigating the same issue through the backdoor by employing judicial craft and making cosmetic amendments to the same application; as he had done with the Amended Application dated 1st October 2024. Kuloba J., in the case of “Njangu – Versus - Wambugu and another Nairobi HCCC No. 2340 of 1991 (unreported)”, held that: “ If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his casesome cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata.....’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 9

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v. In the Court of Appeal case of “Siri Ram Kaura – Versus – M.J.E. Morgan CA 71/1960 (1961) EA 462” the then EACA stated that:“ The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata... The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before... The point is not whether the respondent was badly advised in bringing the rst application prematurely; but whether he has since discovered a fact which entirely changes the aspect ofthe case and which could not have been discovered with reasonable diligence when he made his rst application. It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a dierent complexion from the one that was given in the former suit.” j. The said protestations were unmaintainable because:a. It was not contestable that though he was adjudged bankrupt on 29th September 2023, the Bankruptcy Trustee (Ocial) was only appointed as so on 8th March 2024 (over 5 months later); b. Before and until the Ocial Receiver was appointed on 8th March 2024, nothing prevented the 2nd Plainti from moving the court as appropriate to ensure the continuance of the suit until such appointment was made. The Court had set strict timelines for compliance and there was absolutely no reasonable prejudice that the Defendant can claim to have suered from the 2nd Plainti's actions of seeking appropriate orders and directions towards the proper prosecution of the suit. c. It would be absurd for the Defendant to claim that any further proceedings vested on the ocial receiver yet on the other hand, the proceedings complained of occurred before the said ocial receiver had been appointed. d. Neither Order 24 Rule 6 of the Civil Procedure Rules, 2010 nor Section 48 of the Insolvency Act direct that a suit where the Plainti had been adjudged bankrupt, was automatically stayed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 10

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e. Under the provision of Section 48 (1) (a) of the Insolvency Act, when a bankruptcy order commences all proceedings to recover the bankrupt's debts were stayed; meaning cases that had been led by creditors or would-be creditors are stayed. The instant suit had been led by himself and not against him. f. Sub - section (1)(b) further provides that the property of the bankrupt (whether in or outside Kenya), and the powers that the bankrupt could have exercised in respect of that property for the bankrupt's own benet, vest in the Ocial Receiver. The instant suit was for recovery of damages against the Defendant. There is no property, in this suit, that he held for his own benet over which he would be said to exercise power over. g. To further arm that the import of the provision of Section 48 is in respect of matters against (and not by) the bankrupt, the ensuing subsection even gave creditors the chance to move the Court to be allowed to continue with proceedings (matters) that had already begun before the bankruptcy commenced on such terms as the Court considers appropriate. k. It was quite unfortunate that the Defendant, through Mr. Kennedy Ogero Mokaya Advocate had resorted to lying under oath. At Paragraph 7 of the Further Adavit of 1st October 2024 and Paragraph 46 of the Further Adavit of 22nd October 2024, Mr. Mokaya blatantly misleads this Honourable Court by stating under oath, that to date no application has been made to the High Court by anyone to allow the suit to continue yet he attaches an annexure of the court order in HCCOMIP E023 of 2022 showing that not only was there an application dated 24th June 2024, but also an interim order of approval has been granted pursuant to Section 63 (2) and (3) of the Insolvency Act, to the Bankruptcy Trustee, FCPA Owen Koimburi to appoint the Bankrupt, Engineer Austin Salmon Kitololo to continue the prosecution of “Mombasa ELC Cause No. 40 of 2006 - Maarifa Developers Limited & Engineer Austin Salmon Kitoloo – Versus - Middle East Bank Kenya Limited” as a Plainti/ witness. l. Though guised as an application and an opportunity to accord more information to the court, the Defendant's amended application is not one for setting aside “ex-parte" orders but an attempt to appeal the rulings of 20th February 2024 and 18th September 2024 through the backdoor. m. The Deponent therefore prayed that the amended Application dated 1st October 2024 be dismissed with costs. VI. The Replying Adavit by 1st Interested Party 12. The 1st Interested Party opposed the Notice of Motion application dated 11th October, 2024 through a Replying Adavit sworn by David M. Mereka on 19th November, 2024 where he averred that:a. By ruling delivered on 18th September 2024 this Court allowed the Deponent’s Application dated 20th May 2024 thereby enjoining him to this suit as an Interested Party. b. While reaching its determination, this Court considered relevant provisions of the law and jurisprudence with respect to the joinder of parties and exercised its discretion judiciously hence there was absolutely no need for a review. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 11

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c. The Plaintis application was an appeal disguised as a review since the Court is being asked consider again the question as to whether the 1st Interested Party qualies to be enjoined a question which the Court had already answered in its ruling dated 18th September 2024 and that the Plaintis believe that the Court should have reached a dierent conclusion or that the decision was erroneous are matters t for appeal rather than review. d. The rm sought to be enjoined as an interested party due to the fact that fact that we acted for the Plainti in this matter and subsequently led an Advocate/Client Bill of Costs in MA No. 329 of 2011 and which was taxed at a sum of Kenya Shillings Nine Million One Ninety Nine Thousand Eight Sixty Eight Hundred (Kshs. 9,199,868/-) now totaling well over a sum of Kenya Shillings Fourty Million (Kshs. 40, 000, 000/=) with interest. However upon various failed attempts to execute against the Plainti the said amount my rm1 led bankruptcy proceedings under High Court commercial and Tax. Insolvency Cause No. E023 of 2023 and by an order of the Court issued on 10th November 2023 the Plainti herein was Adjudged Bankrupt and thereafter Mr. Owen Koimburi Njenga was appointed as the Bankruptcy Trustee. e. Despite his appointment, the Bankruptcy Trustee had failed and/or neglected to appraise him of the progress with respect to the recovery of the Bankrupt’s estate despite the fact that the had been in communication since March 2024, a fact that the 1st Interested Party found after ling application for enjoinment. f. By an email dated 9th May 2024, he wrote an email to Mr. Owen Koimburi who, on mobile phone advised him that his instructing Client is Business Registration Services and that he was under no obligation to keep me posted and that Mr. Kitololo had failed to accede to his request under the Act despite the fact that there are several properties, the subject matter of this suit listed in the plaint and in the custody of the bank. g. As such the application dated 20th May 2024 was necessitated by the fact that neither the Plainti nor the Bankruptcy Trustee advise me of the process of recovery of the Bankruptcy trustee despite being the Petitioning Creditor. h. It was very obvious that the Plainti and his Advocates want to keep me away from these proceedings, while blocking all eorts by the Bankruptcy Trustee to proceed under the Act and in an attempt to evade payment of the decretal amount in the taxation aforesaid if he was to win the suit. i. He was conversant with the Insolvency Act with respect to the duties of a Bankruptcy Trustee Including adjudicating claims, paying creditors, holding creditors meetings, making payments among other matters and which he has failed to do. j. The Plaintis had completely misrepresented the contents of their letters dated 9th August 2024 which was written in response to the Plaintis letter dated 17th July 2024 attached herein and marked as “DMM - 1” where they requested us to abandon our Application and the circumstances from the date of writing the said letter to date have since changed including the failure by the Bankruptcy Trustee to appraise the Creditor of process of recovery of Bankrupt’s estate and non - attendance of Court by the Bankruptcy Trustee and which have deemed it necessary for the Interested Party participate as such they asked the Court to disregard the said letter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 12

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k. The interested party therefore urged this Court to nd that the Application for review was unmerited and uphold its ruling dated 18th September, 2024. VII. Submissions 13. On 19th December, 2024 while all the parties were present in Court, they were directed to have the two (2) Notices of Motion applications dated 1st October, 2024 and 11th October, 2024 respectively be disposed of by way of written submissions. Pursuant to that, and all parties having fully complied, a ruling date was reserved on 21st March, 2024 by Court accordingly. A. The Written Submission by Plainti 14. The Plaintis through the Law rm Messrs. Kihiko N & M Law Advocates LLP, led their written submissions dated 6th November, 2024. Mr. Mutugi Advocate submitted the submissions were the Plainti’s in opposition to the Defendant’s Amended Application dated 1st October 2024. The said application was supported by an adavit sworn on 21st March 2024, a further adavit sworn on 1st October 2024 and yet another further adavit sworn on 22nd October 2024. All adavits had been sworn by Mr. Kennedy Ogero Mokaya, an Advocate. The Plaintis had opposed the said application vide Replying Adavit sworn on 11th October 2024 and a further adavit sworn on 29th October 2024 by Austin Salmon Kitololo, the 2nd Plainti. 15. The summary of the Defendant’s application according to the Learned Counsel was that the Defendant’s Amended Application dated 1st October 2024 primarily seeks that the Court sets aside the ex-parte orders made on 20th February 2024. It is brought under the provision of Article 50 of the Constitution on fair hearing, Sections 48 (1) of the Insolvency Act on what happened when bankruptcy commences, provision of Section 152 of the Insolvency Act on prohibition of bankrupt from entering business, Section 301(1) of the Insolvency Act on oence by bankrupt in relation to management of companies, Order 51 Rule 1 & 5 of the Civil Procedure Rules, 2010 & Sections 1A & 1B of the Civil Procedure Act, cap. 21. 16. In summary, the Defendant contended that the 2nd Plainti had no capacity to continue the suit upon being adjudged bankrupt. The Defendant impugned the taking of directions resulting in the ruling of 20th February 2024 on the basis that by that time, the 2nd Plainti had been adjudged bankrupt and that the suit was automatically stayed pending appointment of a bankruptcy trustee. Therefore, the Defendant believed that all proceedings, and in particular the orders of 20th February 2024 which allowed the Plainti to le further further further amended plaint that joined Maarifa Developers Limited as the 1st Plainti, taken out after the 2nd Plainti had been adjudged bankrupt, were null and void. 17. On the summary of the Plainti’s rejoinder, the Learned Counsel contended that the 2nd Plainti retained capacity at all times despite his bankruptcy status. The 2nd Plainti averred that the Defendant misapprehended the import of Section 48 (1) of the Insolvency Act and Order 24 Rule 6 of the CPC, and further maintains that nothing in law stopped him from taking directions, continuing the suit pending the appointment of the bankruptcy trustee. 18. He claried that Section 48 (1) of the Insolvency Act stopped creditors and not the bankrupt, from continuing proceedings for recovery of debts against the debtor. 19. On the issues for determination, the Learned Counsel relied on the following:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 13

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a. Were the proceedings automatically stayed on 29th September 2023 upon issued of bankruptcy order against the 2nd Plainti? b. What powers of the bankrupt are envisaged under section 48 (1)(b) of the Insolvency Act? c. Could the powers of the 2nd Plainti vest in the ocial receiver before his appointment on 8th March 2024? d. Was the Amended Application dated 1st October 2024 res judicata by virtue of the Ruling of 18th September 2024 in respect of the Defendant's Application dated 9th May 2024? e. What prejudice, if any, would the Defendant suer if the amended Application dated 1st October 2024 seeking to set aside the orders of 20th February 2024 on account of the 2nd Plainti’s bankruptcy status, was dismissed? 20. On whether the proceedings were automatically stayed on 29th September 2023 upon issued of bankruptcy order against the 2nd Plainti. The Learned Counsel submitted that the answer was no and they said so because there was no legal, statutory or constitutional backing to this assertion repeatedly made by the Defendant. The Defendant had heavily relied on and repeatedly quoted section 48 of the Insolvency Act to make arguments that the proceedings in this matter were automatically stayed upon the 2nd Plainti being adjudged bankrupt on 29th September 2024. 21. With reference to Section 48 of the Insolvency Act, the Learned Counsel submitted that it provided as follows:“ 48. What happens or is to happen on and after bankruptcy commences 1. 22. a. All proceedings to recover the bankrupt’s debts are stayed; and b. The property of the bankrupt (whether in or outside Kenya), and the powers that the bankrupt could have exercised in respect of that property for the bankrupt’s own benet, vest in the Ocial Receiver.” The above provision was a general rule. An exception is provided in the ensuing sub - section as follows: “ (2) 23. When a bankruptcy order commences – Despite sub - section (1), the Court may, on the application by a creditor or other person interested in the bankruptcy, allow proceedings that had already begun before the bankruptcy commenced to continue on such terms as the Court considers appropriate.” What then, was the correct interpretation of the above section? While opposing the Defendant's other application dated 9th May 2024, where the same issue arose, the Plaintis cited (and the Court agreed) the case of “Surjit Singh Hunjan & another – Versus - The Deposit Protection Fund Board (sued as the liquidator of the Prudential Building Society [2012] eKLR” where Justice Mabeya found that the Insolvency Act (repealed the Bankruptcy Act) provides that creditors (and not debtors) are precluded https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 14

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from instituting or continuing suits for recovery of debt. The Judge was referring to the provision of Section 9(1) of the Bankruptcy Act (repealed) as replaced by Section 48 (1) of the Insolvency Act, thus: “ My reading of that section is quite clear. The person barred from commencing or continuing with any proceeding after a receiving order has been made is a creditor and not a debtor. In the case before me, the person who commenced the proceedings was a debtor. Obviously, she had locus standi to bring this suit. She was never barred by any provision of law. Even if the debtor was barred by that section, which is not the case, the suit by the 2nd Plainti cannot be defeated for the reason that his Co- Plainti lacked locus standi to sue. A proper order would have been to strike out the suit of the 1st Plainti and leave that of the 2nd Plainti surviving. This is not necessary for the reasons I have already set out above.” 24. Further, the learned Counsel relied on the case of “Wambulwa – Versus – (Insolvency Cause E001 of 2021)[2022] KEHC 14878 (KLR)”, the Court stated thus:“ The wording of Section 48 (1) of the Insolvency Act, in my view, does not restrain the debtor from moving the court...for it merely stays all proceedings by other creditors to recover debts of the debtor, and vests the property of the debtor in the Ocial Receiver.” 25. From the foregoing, it was clear that nothing in law barred the 2nd Plainti from continuing the current suit even after being adjudged bankrupt. Therefore, the Learned Counsel averred that proceedings in this matter were not automatically stayed on 29th September 2023 upon issued of bankruptcy order against the 2nd Plainti, as alleged by the Defendant. 26. On what powers of the bankrupt was envisaged under the provision of Section 48 (1)(b) of the Insolvency Act, the Learned Counsel submitted that the current suit was for recovery of properties belonging to the 2nd Plainti and damages accruable to the 1st Plainti. All the titles to the suit properties are in the custody of the Defendant (if not already disposed through sale) pursuant to charge arrangements between the 1st Plainti and the Defendant. The 2nd Plainti had also relinquished properties in his name to go towards supplementing the security given by the 1st Plainti to the Defendant. There was no property that the 2nd Plainti could be said to hold or exercise power for his own benet. To that extent, this suit does not fall within the context of section 48 (1)(b). Again, the Defendant's claim that the all the powers in the suit vested in the bankruptcy by virtue of section 48(1) (b) was a misapprehension of the said section. 27. On the issue of whether the powers of the 2nd Plainti could vest in the ocial receiver before his appointment on 8th March 2024, the Learned Counsel argued that it was an undisputed fact that the ocial receiver (bankruptcy trustee) was formally appointed on 8th March 2024.The proceedings impugned by the Defendant, occurred between September 2023 and February 2024, a period before the appointment of the bankruptcy trustee. So, even for argument’s sake, if there were powers in respect of property that the 2nd Plainti could have for his own benet within the context of this suit, and that those powers vested in the ocial receiver, is it possible for those powers to have vested in the bankruptcy trustee before he was appointed? They urged the Court to nd in the negative. 28. According to Learned Counsel on whether the Amended Application dated 1st October 2024 was res judicata by virtue of the Ruling of 18th September 2024 in respect of the Defendant’s Application dated 9th May 2024, the same issues were raised in the Defendant's Application dated 9th May, 2024 where he sought that the suit be dismissed on the ground that Mr. Kitololo in his own capacity and as https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 15

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a director of Maarifa Developers has no capacity to sustain, continue and prosecute the suit (ground c of the Application dated 9th May 2024) 29. The court rendered ruling on the Application dated 9th May 2024, on 18th September 2024 where the Court in formulating issues for determination, posed the question as to whether the Notice of Motion application dated 9th May 2024 on the capacity of the 2nd Plainti to sue having been adjudged bankrupt was merited. The court proceeded to answer the question and in the ensuing Paragraphs 13,14 & 15 of the Ruling delivered on 18th September 2024, the Court found in the armative that: “ I do agree with the 1st Plainti nothing prevented the 2nd Plainti from continuing and prosecuting the suit both on his behalf and in his capacity as a director of the 1st Plainti until the appointment of someone in law (Bankruptcy Trustee), who would take up/maintain the suit for the benet of his creditors, if he deems it t.” 30. The Defendant was prevented from litigating the same issue through the backdoor by employing judicial craft and making cosmetic amendments to the same application; as he has done with the Amended Application dated 1st October 2024. Kuloba J., in the most cited case of “Njangu – Versus Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported)”, held that:“ If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata.....” 31. Further the Learned Counsel relied on the Court of Appeal “locus classicus” case of “Siri Ram Kaura – Versus - M.J.E. Morgan, CA 71/1960 (1961) EA 462” where the then EACA stated that:“ The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata... The law with regard to res judicata is that it is not the case,and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before... The point is not whether the respondent was badly advised in bringing the rst application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his rst application. It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a dierent complexion from the one that was given in the former suit.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 16

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32. The Learned Counsel fully relied on the preceding ndings of the Court and urged this Court to nd that the Defendant’s Amended Application dated 1st October 2024 was res judicata by attempting to re-litigate the same issue of capacity of the 2nd Plainti to continue the instant suit for the period between September 2023 and February 2024. 33. On what prejudice, if any, would the Defendant suer if the amended Application dated 1st October 2024 seeking to set aside the orders of 20th February 2024 on account of the 2nd Plainti's bankruptcy status, is disallowed, the Learned Counsel argued that though ground g of the Amended Application appeals to the interests of justice that orders of 20th February 2024 be set aside and that the Defendant be given an opportunity to le its response to the Plainti's Application dated 14th November 2023, the Defendant seems to have abandoned this request by deleting prayer 2 in the Amended Application. 34. Nonetheless, the Defendant particularly lamented that it stood to be extremely prejudiced by the joinder of Maarifa Developers Limited as a Plainti (see ground f that the Defendant's overarching aim was to ght the joinder of Maarifa Developers Limited by leveraging on the bankruptcy status of the 2nd Plainti of the Amended Application). It was therefore safe to assume. Bar any extraneous issues introduced by the Defendant the amended application must fall within the connes of setting aside of an ex - parte order. The rst question would be whether the order of 20th February 2024 was an exparte order. 35. According to the Learned Counsel, the Defendant was on record telling the Court that he deliberately chose not to respond to the Application dated 14th November 2023, a fact the Court noted in its ruling of 20th February 2024: “ Despite of having been properly served with the application, Mr. Mokaya informed Court that he deliberately refused, ignored and/or failed to respond to it essentially on the grounds that the said application was a nullity and void having breached the pre-condition spelt out from the afore stated Ruling by this Honourable Court on 16th October, 2023.” 36. Can the Defendant now turn around and claim that the same Court should set aside the said orders? Can the Defendant invoke the exercise of this Court's discretion when this discretion is only intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not designed to assist the person who has deliberately sought, whether by evasion or otherwise toobstruct or delay the course of justice? (“Pithon Waweru Maina – Versus - Thuku Mugira (1983) eKLR”).They urged the court not. 37. According to the Learned Counsel it was important to state that the current events were set in motion by the Defendant when, vide its Application dated 29th May 2023, the Defendant protested the addition of "Maarifa Developers Limited" as the “First Plainti" as there was no leave of court sought nor granted through an appropriate application on joinder of parties as required by law. At paragraph 32 of its ruling of 16th October, 2023, this Court stated that:“ 32. It appears that the Plaintis/Applicants is desirous on joining a party – “Maarifa Developers Limited” as party to this suit as 1st Plaintis/Applicants. There is nothing wrong at all with that intention. Far from it. The only hitch but a signicant one is that the Plaintis/Applicants unilaterally having decided and elected to introduce this party through an amendment of pleadings rather than seeking leave for joiner of parties as provided for in law. I cannot concur more with the Learned Counsel for the Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 17

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herein that the best avenue available for the Plainti/Respondent was to have sought leave for joinder of parties. Ideally, and in my view any application for joiner of a party before the hearing of the suit should be freely allowed by court especially where there will be no injustice caused to the other side. The joinder and amendment sought are designed to help place before the court all the relevant matters for purposes of determination of the real issue in dispute and controversy between the parties. Hence, the application once made should succeed.” 38. This Court went on to further allow the 2nd Plainti to move the Court formally for leave to enjoin Maarifa Developers Limited: “ The court will provide the Plainti with the second bite of the Cherry by granting them an opportunity to le and serve an omini bus application seeking fresh for amendment of aFurther Further Amended Plaint under the provision of Order 8 Rules 2 and 3 and addition of a party - under order 1 Rule 10 (2) of Civil Procedure Rule, 2010.” 39. The orders of 20th February 2024 were to allow the Plainti to join the 1st Plainti as a party in the suit, to further bolster its case. How was that prejudicial to the Defendant? What prejudice would the Defendant suer when all its issues can be ventilated during hearing of the main suit? Interlocutory applications had impeded the disposal of this very old matter and parties have resulted in litigating the matter in portions and piecemeal. The Court was clothed with jurisdiction and competence to hear parties and determine whether the issues arising are for granting or refusal, without the need to expend so much time dealing with miniscule issues, one after the other, brought through numerous applications. 40. In conclusion they submitted that no prejudice, at all, would be suered by the Defendant if the amended Application dated 1st October 2024 was disallowed to pave way for the hearing and determination of the main suit. B. The Written Submissions by the Defendant 41. The Defendant through the Law rm of Messrs. Mokaya & Onyambu Advocates led its written submissions dated 5th November, 2024. Mr. Mokaya Advocate commenced by stating that by an application dated 21st March 2024, the Defendant applied to this Honourable Court to set aside the orders made herein on 20th February 2024 allowing amendment of the Further Amended Plaint and joinder of an additional Plainti, who added its own causes of action. This application was amended by an Amended Notice of Motion dated 1st October 2024 seeking the same orders but by adding grounds for setting aside the same. This amended application was anchored on Article 50 of the Constitution, Sections 48 (1), 152, 301 (1) of the Insolvency Act and Order 51 Rule 15 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 42. According to the Learned Counsel it should be emphasized that under Order 51 Rule 15 of CPR, 2010, this Honourable Court's powers of setting aside were not restricted, and on an application to set aside an ex parte order, it may consider all the facts and points of law which were relevant in connection with orders made. The intention of the rule is to give an opportunity to the applicant, inter alia, to put https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 18

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forward the case which it would have made at an inter parte hearing. On this point, this Honourable Court paragraph 8 of its ruling delivered on 22nd February 2024, expressed itself thus:“ Should a party be aggrieved or dissatised with any Court order the available route to take is to come back to the Court for them to be set aside, varied or discharged.” 43. The Defendant’s application was supported by adavits of Kennedy Ogero Mokaya sworn on 21st March, 1st October and 22nd October 2024. On 14th November, 2023 the Plainti, Austin Salmon Kitololo, led an application herein seeking an extension of time of le and serve this application and that the “instant application” be deemed as properly led and served. And this application, which was led and served out of time, and without having obtained any extension of time to do so, also sought “leave to enjoin the intended Plainti” and to “further amend” the Further Amended Plaint. 44. According to the Learned Counsel this application was supported by an adavit of the Plainti sworn on 14th November 2023, and the exhibit thereto. This application should have been preceded by an application for, extension of time and not led on the assumption that the extension would automatically be granted as of right or that the application would be deemed as having been duly led. It was further urged that extension of time was not a right of a party, but an equitable remedy only available to a deserving party at the discretion of the Court, and that the Plainti bears the burden of demonstrating to the satisfaction of the Court the cause of the delay, which, they submitted, the Plainti had failed to do as so, as clearly held by this Honourable Court in Paragraph 8 of its ruling. 45. In the case of:- “Nicholas Kiptoo Arap Korir Salat – Versus - IEBC (2014) eKLR”, the Supreme Court dealing with an appeal that was led out of time, but followed by an application for an extension of time for doing so, in Paragraphs 53 and 54 of its ruling expressed itself thus: 46. “ 53. By ling an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do. 54. To le an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be led out of time without leave of the Court. Such a lling renders the 'document' so led a nullity and of no legal consequence. Consequently, this Court will not accept a document led out of time without leave ofthe Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court's Registry. This is irregular as that document is unknown in law an d the same should be struck out. Where one intends to le an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the Court's perusal when making his application for extension of time.” This decision of the Supreme Court was followed by the apex court in “Odhiambo – Versus - Ochieng and others (2018) 1 EA 297” at page 318 d to j. The Supreme Court again emphasized: “ To enjoy it a party has to demonstrate that he has a bone de cause of action and time had lapsed, but was constrained to pursue within the time that cause, because of some compelling reasons, and that he was not at fault.” 47. Based on these guidelines of the Supreme Court, this Honourable Court should “not remedy an illegality”. Furthermore, the application so led was a “nullity and of no legal consequence”. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 19

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application being a document unknown in law" ought to have been struck out.This Honourable Court had already held that the Plainti had not laid any foundation for this Court to exercise its discretion to extend time for ling his said application. Alternatively, the Defendant's application was, inter alia, made under made pursuant to Article 50 of the Constitution and Order 51 Rule 15 of the Civil Procedure Rules, 2010. 48. The Plainti's application was mentioned before this Honourable Court on 13th February 2024, when after hearing the advocates of parties, this Honourable Court ruled: “ May the Plainti place the N/M appl. dated 14th November, 2023, the adavit of service & the letter to Court written in December 2023. Court will need to assess them and give its directions on this matter on 21st February, 2024.” 49. However, by an oversight, this Honourable Court, delivered a ruling on 21st February 2024, allowing the Plainti's application for amendment of the Plaint and addition of a Plainti. Most unfortunately, the Defendant’s advocate did not get an opportunity to address this Honourable in opposition to the said application for an amendment as indicated in his supporting adavit herein sworn on 21st March 2024. Even written submissions had not been led by either side. The Defendant had accordingly been denied a “fair hearing” guaranteed by Articles 50 (1): This right cannot be limited (Article 25 (c) of the Constitution). Further, on 16th October 2023, this Honourable Court ordered the Defendant to le its reply to an application which was to be led within the time indicated in the Order: The Plainti failed to le and serve his application within the time ordered by the Court. 50. On 16th October 2023, this Honourable Court further ordered the Defendant to le its Amended Defence but only if the Plainti led and served on it the said application in time: none of these obligations arose as the Plainti’s application did not comply with the Court order. Furthermore, this Honourable Court, with great respect, purported to act under the provisions of Order 51 Rule 14 (4) of Civil Procedure Rules, 2010 which is as follows: (4) 51. If a respondent fails to comply with sub rule (1) and (2) the application may be heard ex parte.” And Order 51 Rules 14 (2) are in the following terms: (2) the said documents in sub rule (1) and a list of authorities, if any shall be led and served on the applicant not less than “three clear days before the date of hearing”; 52. A hearing date for the said application of the Plainti had not been xed: in fact the Plainti’s advocates had sought a hearing date prior to 13th February 2024, and no such date was allocated: and so the time limit for ling any documents in opposition had not even expired. And no written submissions had been led and served by either party, nor had any directions regarding the same been made by this Honourable Court: on 13th February, 2024 the Plainti’s application was not set down for hearing. In the circumstances this Honourable Court, with great respect, had no jurisdiction to act under the provision of Oder 51 Rule 14 (4) of Civil Procedure Rules, 2010. 53. And as so rmly held by the Supreme Court in “Nicholas Salat’s case (Supra)”, a document not led within the time xed was a “nullity and of no legal consequence”: for Court or even a party to the proceedings to give any credence to such a document would be to “remedy an illegality”. As Lord Denning put it so aptly in “the McFoy’s case” “you cannot put something on nothing and expect it stand: similar holdings were made by the Supreme Court at paragraphs 110 and 111 of its judgment https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 20

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in the Karisa Chengo appeal. The application being nullity and of no legal consequence there could not be, with respect, any obligation on the part of the Defendant to comply with the requirements of Order 51 Rule 14 of Civil Procedure Rules, 2010. But much more important, with great respect to this Honourable Court, under the provision of Order 51 Rule 14 (4) of Civil Procedure Rules, 2010 this Honourable Court had been given discretion to decide “TO HEAR” the application “EX PARTE”. 54. The Learned Counsel argued that it was incumbent upon this Honourable Court to hold an ex parte hearing where the Plainti was obliged to satisfy this Honourable Court that his application had merits, and only after such a hearing any order could be made. There had been no such hearing; the Court instead entered a default judgment. This Honourable Court could not make an order akin to entering a judgment for a liquidated sum on a written application of a Plainti, if this was the intention of the rule 15 would have read that the Court could grant the application prayed or make any order sought by any applicant. Even if there was only one team on the football ground, that team was obliged to score the goal or goals that it had specied in its application - there was no question of a walk over. 55. This Honourable Court could only make any order after an EX - PARTE HEARING and then considering the application and evidence in support of it, before determining whether or not to give the orders sought----it does not become a walkover. In the case of:- “Victoria Khakhubi – Versus - Joseph Maloba Odhiambo (2006) eKLR”, G.B.M Kariuki J., as he then was, dealing with procedure to be followed at an ex - parte hearing, expressed himself thus:“ Even if the trial court had jurisdiction, which it did not have, there was no basis in the absence of evidence for the order of eviction. Unlike a claim for a liquidated sum in respect of which a Judgement can be entered, an order for eviction requires the Plainti to adduce evidence to show that he is legally entitled to the order. In the absence of such evidence, a court of law cannot on bare allegations in pleadings give such Judgement. This was the case here”. 56. In the case of:- “Rose Wairimu Kamau – Versus - Matunda (Fruits) Bus Service (2024) KEHC 4829”, Majanja J., dealing with a similar situation held:“ 6. ...................In my view, once interlocutory Judgment is entered, the Plainti proceeds to prove its case without the Defendant. The eect of the interlocutory Judgment is to bar the Defendant from presenting its case. In common parlance, where the court enters interlocutory Judgment, the Plainti proceeds to formally prove its claim. The purpose of a formal proof was considered by Emukule J. in Samson S. Maitai & Another – Versus African Safari Club Ltd & Another [2010] eKLR cited with approval by Havelock J in Rosaline Mary Kahumbu – Versus - National Bank of Kenya L td [2014] eKLR as follows: In the present circumstances however, the Defence was struck out and thus the Defendant does not have the opportunity or privilege to present its evidence and argument. In light of the absence of a Defence on the le, it follows logically, that the matter would proceed to formal proof. What therefore is hearing by formal proof? In the case of Samson S. Maitai & Another – Versus - African Safari Club Ltd & Another [2010] eKLR, Emukule, J observed thus;”………………Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 21

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Can hearing therefore, by formal proof, be similar to a full hearing? In contrast, at a formal proof hearing. if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sucient proof of any issues of fact or law. It would be heard and determined on its merits. 7. 57. It is clear therefore that in a formal proof, the Plainti still bears the burden of proving its case in accordance with the normal rules of evidence”. Similarly, in the case of “Karigu – Versus - Kabiya (1987) KLR 347”, the Court of Appeal at page 347lines 39-40-held: “ 1. The burden on a Plainti to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended. The burden of proof is in no way lessened because the case is heard by way of formal proof.” 58. Most importantly the Plainti's application sought the exercise of the Court's discretion, inter alia, to extend time for ling the application, for permitting amendment of the Plaint and to add a Plainti. Such discretion must be exercised “judiciously”, and such exercise can only be considered as having so exercised if consideration is rst given at the ex parte hearing to the case made by the Plainti - if it the discretion is exercised on basis of a walkover then it could only be considered as having been exercised “whimsically” and not “judiciously”.If this was not the case, then any and all orders would be made automatically without even considering whether there was any merit in the orders sought or even considering if the Court had jurisdiction to entertain the application. 59. The Learned Counsel submitted that in the case of “Nicholas Keter, supra”, as regards exercise of discretion by a Court, the Supreme Court at paragraphs 74,77 and 80 of its ruling held:“ 74. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it. 77 ………….This can be perceived by the use of the word “may” in crafting ofthe rule. This discretion is a very powerful tool which in our view should be exercised with abundant caution, care and fairness; it should be used judiciously and not whimsically to ensure that the principles enshrined in our Constitution are realised. 80. An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 22

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discretion to be exercised in his favour, as a defaulter. Unless he provides an explanation for the default. 60. Discretion cannot be considered to have been exercised judiciously by default or by a walkover. That would be considered as having been exercised WHISICALLY or CAPRICIOUSLY. The Supreme Court held that the applicant seeking a court's discretion must place material before a Court to convince a Court that the applicant deserves a Court's indulgence. This Honourable Court had in its ruling at paragraph 8 very rmly held that there are no facts deponed in the Plainti's adavit which would justify the exercise of this Honourable Court's discretion to extend time for ling the application. So even in a walkover there would no justication before the Court for an extension of time. 61. Further, this Honourable Court having held most positively that no case had been made out for an extension of time, it would most inequitable and unjust if at the same time extend time on a WALKOVER basis. In the case of “Kugo Muganda Vincent – Versus - John Mbugua Kungu (2003) eKLR”,(referred to in the ruling delivered on 22nd February 2024) when the Defendant’s Advocate did not turn up for the hearing of an application for summary judgment, the learned Magistrate heard this application ex parte, and then gave his judgment. 62. On appeal Sergon J., found no fault in the course taken by the Learned Magistrate in hearing summary judgment application ex parte. Sergon J, held:“ However, when the matter came up for inter partes hearing on 14.6.2001.the applicant's advocate Mr. Arang'a did not turn up. The respondent's advocate Mr. Kiarie sought to proceed ex parte and was granted leave to do So………………..Secondly: that the trial magistrate was perfectly right to allow the respondent's advocate to proceed ex parte in view of the fact that there was no one to oppose the application and even if the applicant's advocate was present it may not have assisted because the court may have exercised its discretion under order L Rule 16 (3) of the Civil Procedure Rules which provides: If a respondent fails to le a Replying Adavit or a statement of grounds of opposition. the application may be heard ex parte.” 63. And in the case of “Peter Nyakundi – Versus - The Principal Secretary (2016) eKLR” (also referred to in the said ruling) the Respondent had led its grounds of objection but had not led its written submissions. Odero J., heard the application inter parte, and made the orders based upon the provisions of the Evidence Act.In neither case there was a walkover or a default judgment: in one case there was a proper ex parte hearing and in the other an inter parte hearing. In exercise of its equitable jurisdiction this Honourable Court should have also taken note that the Plainti's acts and deeds in this case are reeking with criminal conduct: It is a criminal oence for the Plainti to act as a Director of Maarifa Developers Limited (Section 301(1) of the Insolvency Act). This company is to be made the Second Plainti and all documents on behalf this company have been signed and presented to this Court by the Plainti - no apology has been oered and these acts are a contempt in the face of the Court. 64. According to the learned Counsel it was also an oence under Section 152(1) of the Insolvency Act for the Plainti to carry on or take part in the management or control of any business which includes his management of Maarifa Development Limited - again no apology was forthcoming for this criminal oence. In light of the aforementioned authorities it is felt that the Defendant should conne its further https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 23

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submissions on eect of the Plainti having been adjudged a bankrupt to the provisions of Section 48 (1)(b) of the Insolvency Act which is as follows:“ the property of the bankrupt (whether in or outside Kenya),and the powers that the Bankrupt could have exercised in respect of that property for the bankrupt's own benet, VEST in the Ocial Receiver.” 65. According to the Learned Counsel, the word “property” was dened in Section 2 of the Insolvency Act and includes money, goods “choses in action”, land and every description property.In Halsbury's Laws of England (4th Edition) Volume 6 at paragraph 1,the learned Editors dene chose in action as: “ The expression 'chose in action' or thing in action in the literal sense means a thing recoverable by action ...... The meaning of expression ‘chose in action’ has varied from time to time, but now is used to describe all personal rights of property which can be only be claimed or enforced by action.” 66. At paragraph 6 “Legal chose in action” was dened as: “ Legal chose in action are those which formerly could be recovered or enforced by action at law.” 67. In this suit the Plainti is not only claiming to recover from the Defendant damages for alleged myriad wrongs, but also land and title deeds to land. Hence all rights to these choses of action vested in the Ocial Receiver as from 29th September 2023, and the bankrupt had no authority or power to make the said application on 14th November 2023. Thus, the Learned Counsel urged this Honourable Court to set aside the default ex - parte orders made on 22nd February, 2024 and give directions on its hearing. VIII. Analysis and Determination 68. I have carefully read and considered the pleadings herein, the plethora of authorities cited and the relevant provisions of the Constitution of Kenya, 2010 and statures. In order to arrive at an informed, fair and reasonable decision, the Honorable Court has framed three (3) the following issues for determination. These are:a. Whether the Notice of Motion application dated 1st October, 2024 is merited. b. Whether the Notice of Motion application dated 10th October, 2024 is merited. c. Who will bear the Costs of Notices of Motion applications dated 1st October, 2024 and 10th October, 2024. Issue No. a). Whether the Notice of motion application dated 1st October, 2024 is merited . 69. Under this sub -title, the Honourable Court are meant to examine whether it should set aside the ex - parte orders made on 20th February, 2024. On 13th February, 2024 the matter was scheduled for pretrail hearing but the: Honourable Court noted that the Plainti had not complied with the orders of 16th October, 2023 and consequently directed that the matter be mentioned on 21st February, 2024 for further directions and on the way forward. On 21st February, 2024 the Honourable Court delivered a ruling and proceeded to allow the Plainti's Notice of Motion Application dated 14th November, 2023. In as far as the Defendant's Amended Application seeks to set aside the ruling and orders of this Honourable Court of 20th February, 2024, that at paragraph 5 of the said ruling the Honourable Court recorded that Mr. Mokaya Advocate deliberately refused, ignored and/or failed to respond to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 24

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the impugned application (that had sought leave to amend the further-further amended plaint). For emphasis, he reproduced the said paragraph of 5 of the Ruling delivered on 20th February 2024 thus:“ Despite of having been properly served with the application, Mr.Mokaya Advocate informed Court that he deliberately refused, ignored and/or failed to respond to it essentially on the grounds that the said application was a nullity and void having breached the pre-condition spelt out from the afore-stated Ruling by this Honourable Court on 16th October 2023” 70. The Plainti contended that it was therefore absurd for Counsel to claim that he was denied a right to be heard yet he deliberately chose not to respond to the then impugned application. It was noteworthy that after the delivery of the Ruling of 20th February 2024, Counsel sought and was granted leave to appeal against the orders of the court and he thereafter led a notice of appeal dated 5th March 2024. As far as he was concerned, no substantive appeal has been led to date. 71. The law on setting aside of ex parte orders is found under the provision of Order 12 Rule 7 of the Civil Procedure Rules, 2010 which provides thus: “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 72. This provision is amplied by Order 51 Rule 15 which provides that the court may set aside an order made ex parte.In setting aside ex parte orders, the court must be satised of one of two things, namely, either that the Respondent was not properly served with summons or that the respondent failed to appear in court at the hearing due to sucient cause. (See – “Philip Ongom, Capt – Versus - Catherine Nyero Owota Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003)”). 73. In the instant case, the Plainti herein contended that it was absurd for the Defendant to claim that he was denied a right to be heard yet he deliberately chose not to respond to the then impugned application. The Plainti contended that the Defendant was properly served with the Application to amend the Plaint. The pertinent question therefore is whether the Applicant’s non-compliance with respect to ling his replying adavit in due time and non-attendance of court on 20th February, 2024 constituted an excusable mistake, or was meant to deliberately delay the cause of justice, and whether the explanation given for these failures qualies as sucient cause. In the case of “Ongom – Versus Owota (supra)” the Court stated thus: “ ………However, what constitutes “sucient cause”, to prevent a Defendant from appearing in court, and what would be “t conditions” for the court to impose when granting such an order, necessarily depend on the circumstances of each case.” 74. In the case of “The Registered Trustees of the Archdiocese of Dar es Salaam – Versus - The Chairman Bunju Village Government & Others Civil Appeal No. 147 of 2006”, the Court of Appeal of Tanzania while deliberating on what constitutes sucient cause opined thus: “ It is dicult to attempt to dene the meaning of the words “sucient cause.” It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona des, is imputable to the Appellant.” 75. In the instant case, I am of the considered view that the explanation advanced by the Applicant for his failure to le his response in due time and further to attend the virtual hearing of 20th February, 2024 are https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 25

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neither plausible, reasonable nor excusable. This court exists to serve substantive justice for all parties to a dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter. This is the fundamental principle of natural justice. (See – “Wachira Karani – Versus - Bildad Wachira Civil Suit No. 101 of 2011 [2016] eKLR”). The nature of bankruptcy proceedings is to protect a bankrupt who is unable to pay his debts by liquidating the assets. 76. Furthermore, I fully agree with the Plainti, that this Honourable Court delivered Ruling on 25th September 2024 in respect of yet another of the Defendant's application dated 9th May 2024 that sought to have the suit dismissed owing to his bankruptcy status. It was noteworthy that after the delivery of the Ruling of 20th February 2024, Counsel sought and was granted leave to appeal against the orders of the court and he thereafter led a notice of appeal dated 5th March 2024. As far as he was concerned, no substantive appeal has been led to date. Related to the above, upon the delivery of the Ruling of 25th September 2024, Mr. Mokaya Advocate again sought and obtained leave to appeal against the orders of the court. It was then, that Mr. Mokaya Advocate dusted o and sought to amend yet another application (the instant application) seeking to re-litigate over the very issue that formed the subject of his application of 9th May 2024. Re – examination of this issue again feels more like repeating myself on a matter I already ruled on which makes the Amended Notice of Motion application dated 1st October, 2024 re – judicata. 77. This is a fairly old matter which I feel the Applicant is contributing to its stalling by deliberate deance of court directives and ling of this application thereafter. I nd the Application by the Defendant dated 1st October, 2024 unmeritorious and therefore proceed to dismiss it. Issue No. b). Whether the Notice of Motion application dated 10th October, 2024 is merited. 78. Under this sub – title, the Honourable Court shall examine whether the Applicant has made a case for the Review of the Honourable Court’s dated 18th September, 2024 by myself.The power of review in the High Court is anchored in the Civil Procedure Act, Cap. 21 of the Laws of Kenya and the Civil Procedure Rules, 2010.The provision of Section 80 of the Civil Procedure Act, Cap. 21 provides as follows: Any person who considers himself aggrieved— 79. (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 t. Order 45 Rule 1 of the Civil Procedure Rules, 2010 further provides for review in the following manner: Any person considering himself aggrieved— (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 of due diligence, was not within his knowledge or could not be produced by https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 26

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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 sucient 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. 80. It will be noted that Courts have severally dealt with the issue of review. Thus, there will be no need to re – invent the wheel here. The Supreme Court in “Application No 8 of 2017, Parliamentary Service Commission – Versus - Martin Nyaga Wambora & others [2018] eKLR”, quoted with approval the ndings of the East Africa Court of Appeal in “Mbogo and another – Versus - Shah [1968] EA”, upon establishing the following principles: (31) 81. Consequently, drawing from the case law above, particularly Mbogo and Another – Versus Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows: i. A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this Court. ii. Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court; iii. An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application. iv. In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically. v. During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review. vi. The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and: a. as a result, a wrong decision was arrived at; or b. it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice. The Court of Appeal in “Civil Appeal No 2111 of 1996, National Bank of Kenya – Versus - Ndungu Njau” observed as follows in respect of reviews applications: “ A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be sucient ground for review that another Judge could have taken a dierent view of the matter nor can it be a ground for review that the court proceeds on an incorrect expansion of the law”. 82. The import of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was considered by the High Court in “Miscellaneous Application 317 of 2018, Republic – Versus - Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR”. Upon considering https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 27

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comparative jurisprudence, the Court crystallized the principles for consideration in reviewing its own decisions as follows: - 83. i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression ‘any other sucient reason’ appearing in Order 45 Rule 1 has to be interpreted in the light of other specied grounds. iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/ judgment of a coordinate or larger Bench of the tribunal or of a superior court. vi. While considering an application for review, the court must conne its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/ decision as vitiated by an error apparent. vii. Mere discovery of new or important matter or evidence is not sucient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/ tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record. ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. The Plaintis contended that on 25th September 2024, the Honourable Mr. Justice L.L. Naikuni made a Ruling on twin applications - the Defendant’s Application dated 9th May 2024 and the 1st Interested Party’s Application dated 20th May 2024, issuing the following nal orders: a. That the Notice of Motion Application dated 9th May 2024 by the 1st Defendant be and is hereby found to lack merit and hence dismissed with costs. b. That the Notice of Motion application dated 20th May 2024 by the Interested Party is found to have merit and is hereby allowed with no order as to costs. c. That an order be and is hereby issued joining David M. Mereka as the 1st Interested Party in these proceedings and is granted leave to le Defence and a Counter - Claim if any. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 28

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d. That an order do and is hereby issued for leave to M/s. Mereka &Company Advocates to formally come on record for the 1st Interested Party. e. That for expediency’s sake, this matter be xed for hearing on 3rd, 16th and 17th October 2024 respectively. f. That there shall be no order as to costs 84. However, it is apparent on the face of the record, and particularly from a reading of paragraph 2 of the said Ruling, that in allowing David Mukii Mereka to be joined as an interested party to these proceedings, the Honourable Court inadvertently failed to sight and/or consider the documents led by the 1st Plainti and OWEN KOIMBURI NJENGA, the 2nd Plainti's Bankruptcy Trustee in opposition to the Interested Party’s Joinder Application. The Deponent conrmed that FCPA Owen Koimburi Njenga was appointed to administer his estate following a Judgment of the Honourable Lady Justice Njoki Mwangi dated 29th September 2023 in the Bankruptcy proceedings initiated by David Mukii Mereka in Milimani HCCOMMIP/E023/2022 - Mereka & Co. Advocates – Versus - Eng. Austin Salmon Kitololo T/A Kitololo Consultants. Annexed in the adavit and marked as “ASK - 2” was a copy of the Judgment of the Honourable Lady Justice Njoki Mwangi dated 29th September 2023 in “Milimani HCCOMMIP/E023/2022-Mereka & Co. Advocates – Versus - Eng. Austin Salmon Kitololo T/A Kitololo Consultants” and the resultant Bankruptcy Order dated 10th November 2023. 85. In the present application, the Applicants have not demonstrated that there has been discovery of new and important matter or evidence, or that there is an error apparent on the face of the record. Review can also be allowed for any other sucient reason. The expression sucient reason means a reason suciently analogous to those specied in the rule. 86. Further, in the case of:- “Shanzu Investments Limited – Versus - Commissioner for Lands (Civil Appeal No 100 of 1993)” the Court of Appeal held that:“ Any other sucient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the civil procedure act: and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.” 87. According to the Applicant, the inadvertent failure by this Honourable Court to consider the documents led by the 1st Plainti and the Bankruptcy Trustee in response to the interested Party’s Joinder Application constitutes an error apparent on the face of the record, which this Honourable Court has powers to rectify under Section 80 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The above matters constitute sucient reasons for this Honourable Court to partially review its Ruling insofar as it relates to the Interested Party’s Notice of Motion Application dated 20th May 2024. “ Any other sucient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the civil procedure act: and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 29

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88. 89. In regards to prayer b, c and dof the Ruling dated 18th September 2024 and delivered virtually on 25th September 2024 the Court ordered as follows:a) …………………………… b) That the Notice of Motion application dated 20th May, 2024 by the Interested party is found to have merit and is hereby allowed with no orders as to costs. c) That an order be and hereby issued joining David M. Mereka as the 1st Interested Party in these proceedings and is granted leave to le defence and a counterclaim if any. d) That an order do and hereby issued for leave to M/s Mereka & Company Advocates to formally come on record for the 1st Interested Party. On the Application dated 20th May, 2024 this Court opined that:16. Under this sub – title, the Honourable Court shall examine whether the Applicant should be joined as a party in the suit. It is instructive to note that before a party is enjoined in a matter, the court ought to satisfy itself that the proceedings are alive. That means that the suit must still be pending before the Court. Therefore, the applicant must move the Court during the pendency of the proceedings in that matter. Again, besides the proceedings being pending there should be not bar to them going on, so much so that if there are orders staying the proceedings then the party cannot move the Court since the proceedings are ‘frozen’ until the orders are lifted, vacated or set aside. 17. For the proposition that the proceedings must be pending, this Court relies on the cases of “Florence Nafula Ayodi & 5 others – Versus - Jonathan Ayodi Ligure, John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR” and “Elizabeth Nabangala Wekesa – Versus - Erick Omwamba & 3 Others; Esther Momanyi Omwamba (applicant) [2021] eKLR”. In the rst case, this Court held that in case a party wishes to be enjoined in a matter, the case must be either be at “the nascent or other stages but must be alive.” In the second case, it was held that in case a party moves the Court to be joined as a party, “there is no doubt anymore that if a party wishes to be joined in a matter he or she must move the Court during the pendency of the proceedings in that matter… the main point is that it (suit) is still alive.” 18. Similarly, in the case of:- “Leonard Kimeu Mwanthi – Versus - Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR”, Lady Justice Mbugua J stated, “A party claiming to be enjoined in proceedings must have an interest in the pending litigation…” From the facts of the instant case, this suit has neither been heard nor nalized. If anything, it is proceeding with applications at the interlocutory stage. Therefore, this stage is appropriate for the application of this nature. 19. It is worth noting that an application for joinder of an interested party may be made even at the appellate stage of the proceedings. The only condition to be met rst is that the proceedings are still alive. The second point that the Court should take care of is that the proposed interested party should not use the procedure to institute a fresh suit, particularly if his application is made at the appellate stage. 20. On these two points I am guided by the holdings of the Court of Appeal and Supreme Court of Kenya respectively the following cases. The applicant in “David Kiptugen – Versus - Commissioner of Lands, Nairobi & 4 others [2016] eKLR” led an application before the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 30

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Court of Appeal to be joined as an interested party to the appeal and for remission of the matter back to the trial court for hearing de novo. The court allowed that application and held; We agree with Ms. Kirui that whatever the outcome of the appeal, if the applicant is not joined in this appeal, he will be deprived of an opportunity to be heard on his claim to the ownership of the suit land. That will of course be unconstitutional and against the rules of natural justice.” 21. Second, in the case of “Communications Commission of Kenya & 4 Others – Versus - Royal Media Services Limited”, the Supreme Court in declining a similar application for joinder of an interested party held:The applicant now seeks to be enjoined in this matter, even though it was neither a party at the High Court nor at the Court of Appeal. The applicant has not demonstrated how the ends of justice would better be served by enjoining it in the appeal… We cannot exercise our discretion to enjoin a party that disguises itself as an Interested Party, while in actual fact merely seeking to institute fresh cause.” 22. The provision of Order 1 Rule 1 of the Civil Procedure Rules, 2010 under which the application is brought provides as hereunder: All persons may be joined in one suit as plaintis in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. 23. Further, the provision of Order 1 Rule 10 (2) of the said Rules provides that: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 plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 24. The relevant tests for determination whether or not to join a party in proceedings were restated by Nambuye, J (as she then was) in the case of “Kingori – Versus - Chege & 3 Others [2002] 2 KLR 243” where the learned Judge stated that the guiding principles when an intending party is to be joined are as follows: 1. He must be a necessary party. 2. He must be a proper party. 3. In the case of the defendant there must be a relief owing from that defendant to the plainti. 4. The ultimate order or decree cannot be enforced without his presence in the matter. 5. His presence is necessary to enable the Court eectively and completely adjudicate upon and settle all questions involved in the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 31

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25. In the case of: “Departed Asians Property Custodian Board – Versus - Jaer Brothers Limited [1999] 1 EA 55” it was held as follows:A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court eectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court eectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for eectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the Plainti seeks in the suit, would legally aect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot eectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” 26. In the case of:- “Civicon Limited – Versus - Kivuwatt Limited and 2 Others [2015] eKLR” the court observed as follows: Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably aected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a Defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suered by the party and the practicability of the execution of the order sought in the suit, in the event that the plainti should succeed. We may add that all that a party needs to do is to demonstrate sucient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.” 27. In this case, the intended interested party was seeking leave to be joined to be able to participate in the proceedings being that he formally acted for the Plainti in this suit and subsequently led an Advocate/Client Bill of Costs in MSA No 329 of 2011 and which was taxed at a sum of Kenya Shillings Nine Million One Ninety Nine Thousand Eight Sixty Eight Hundred (Kshs. 9,199,868/-) on 7th October 2011 as per attached order of the court marked as “DMM - 1” annexed herein. Upon various failed attempts to execute against the Plainti his rm led bankruptcy proceedings at the High Court commercial and Tax, Insolvency cause No. E023 of 2023 subsequently the court issued a bankruptcy order on 10th November 2023 attach in the adavit and marked as “DMM - 2” and the Plainti herein was Adjudged Bankrupt and hence has no capacity to prosecute this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 32

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28. This Court relies on the case of “Martin Kirima Baithambu – Versus - Jeremiah Miriti [2017] eKLR”, where the court pronounced itself as hereunder: The pragmatic reality has been for courts to add parties in a suit based on guarantee if it is desirable to add such party so that the court can resolve all the matters in controversy eectually and completely. Aptly here would be to invoke the procedure provided under Order 1 Rule 15 of the Civil Procedure Rules. I say these things for the sake of jurisprudence.” 29. Accordingly, based on the foregoing reasoning, I strongly nd great merit in the application for joinder. Thus, it must be allowed. 90. Joinder of parties is governed by Order 1 of the Civil Procedure Rules, 2010. In law, joinder should be permitted of all parties in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally; or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise. The court may even in its own motion add a party to the suit if such party is necessary for the determination of the real matter in dispute or whose presence is necessary in order to enable the court to eectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, joinder of parties is permitted by law and it can be done at any stage of the proceedings. But, joinder of parties may be refused where such joinder will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other words, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally dierent form existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties. This is the test I shall apply in this case. 91. In the end, I strongly discern that the Notice of Motion application dated 11th October, 2024 does not meet the threshold for an order of review. For these reasons, it is devoid of merit and hereby dismissed. Issue No. c). Who will bear the Costs of Notices of motion application dated 1st October, 2024 and 11th October, 2024 92. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court rearmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 93. In the present case, upon various consideration, the Honourable Court elects to award the Costs of the Notice of Motion application dated 1st October, 2024 to the Plaintis and the costs of the Notice of Motion application dated 11th October, 2024 to the Defendant and the 1st Interested Party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 33

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IX. Conclusion & Disposition 94. In long analysis, the Honorable Court has carefully considered and weighed the conicting parties’ interest as regards to Preponderance of Probabilities and balance of convenience. Having said that much, in a nutshell, I proceed to order the following:a. That the Amended Notice of Motion application dated 1st October, 2024 by the Defendant/ Applicant be and is hereby found to lack merit and hence dismissed with costs to the Plaintis/ Respondents. b. That the Notice of Motion application dated 11th October, 2024 by the Plaintis/Applicants be and is hereby found to lack merit and hence dismissed with costs to the 1st Defendant and 1st Interested Party. c. That for expediency sake, this matter which was led in the year 2006 (19 years ago) ought to be heard and disposed o within the next 180 days from this date commencing from the already scheduled hearing date on 30th April, 2025 respectively before Hon. Justice Olola to be maintained. d. That the Costs of the Notice of Motion application dated 1st October, 2024 are awarded to the Plainti to be paid by the 1st Defendant and the costs of the Notice of Motion application dated 11th October, 2024 are awarded to the 1st Defendant and the 1st Interested Party to be paid by the Plainti. It is so ordered accordingly. RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS 28TH DAY OFMARCH 2025. ………………………………… HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT MOMBASA Ruling delivered in the presence of: M/s. Firdaus Mbula, the Court Assistant. Mr. Ougo & Mr. Mutugi Advocates for the Plaintis/Respondents. Mr. Mokaya Advocates for the Defendant/Applicant. No appearance for the Interested Party. HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE) https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18753/eng@2025-03-28 34

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