Wahome

Sections 1A, 1B and 80 of the Civil Procedure Act, Cap. 21, Order 45 Rules 1, 2 and 3(2) and Order 51 Rule 1 of the Civil Procedure Rules. 2. The Applicant seeks the following orders: a) THAT the Applicant herein be appointed a Director of the First Defendant/Respondent herein. b) THAT this Honorable Court be pleased to review its Decree given on 23rd May 2024 and issued on 30th August 2014 by extending Order “g” thereof to include the appointment of the Applicant herein as a Director of the First Defendant herein. c) THAT this Honourable Court does grant any other Order as it may deem just, fit and expedient to give full effect the Decree issued herein. d) THAT costs of this application be provided for. 3. The Application is premised on the grounds set out on its face and is further supported by the Supporting Affidavit sworn by June Wanjuku Wahome, the Plaintiff/Applicant. She depones that on 23rd May 2024, Hon. Lady Justice Judy Omange delivered Judgment in the matter, which resulted in the issuance of a Decree. By Order “g” of the Decree, the Registrar of Companies was directed to effect a change of shareholding in the 1st Defendant by transferring shares owned by Aziz Nuauarani, Maleksultan Bhimji Hasham Mawani and Badrudin Noor Mohamed Jiwa to the Plaintiff as executor of the estate of the late Leah Thogori Wahome. 4. The Applicant states that pursuant to the said Order, the Registrar of Companies effected the change in shareholding and she was registered as a shareholder of the 1st Defendant with three (3) shares. She further states that the original title document for the suit property was handed over to her advocates to facilitate the transfer of the suit properties, namely Flats Nos. 1, 2 and 4, in her favour. RULING ELC E403 OF 2022 2 of 11

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5. It is the Applicant's contention that, notwithstanding the partial satisfaction of the decree, full implementation of the judgment has been impeded by the fact that the whereabouts of the current directors of the 1 st Defendant, being the developer of the suit properties, remain unknown. According to the Applicant, this has rendered the operations of the 1st Defendant impossible, including the completion of the transfers of the three flats in her favour. 6. The Applicant further deposes that completion of the transfers is a prerequisite to the distribution of the two flats in accordance with the Will of her late mother. She states that her current status as a shareholder limits her authority in relation to the decisions and operations of the 1st Defendant, particularly those necessary for finalising the registration of the transfers and obtaining the requisite completion documents for the three flats. 7. The Applicant therefore contends that, in view of the circumstances that have arisen following the Judgment and the partial implementation of the Decree, it is necessary for the Court to extend its orders to provide for her appointment as a director of the 1st Defendant. She states that the Companies Registry has directed that the Court orders be extended to include her appointment as a Director of the Company. 8. The Applicant maintains that any further delay prejudices the estate of the late Leah Thogori Wahome and its beneficiaries and prevents them from enjoying the fruits of the Decree. She further states that no appeal has been preferred by the Defendants against the Judgment and that the Application has been made without unreasonable or undue delay. 9. The Application is not opposed. The Applicant has filed an Affidavit of Service evidencing service of the Application upon the parties required to be served. RULING ELC E403 OF 2022 3 of 11

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The Applicant’s Submissions 10.The Applicant filed written submissions dated 20 th February 2026 identifying three issues for determination: whether the Court has jurisdiction to review its decree, whether the legal threshold for review has been met, and whether appointing the Applicant as a director of the 1st Defendant is necessary to implement the judgment and protect the estate's interests. 11.The Applicant submits that the Court has jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules to review its own decree where there is sufficient reason. Relying on National Bank of Kenya v Ndungu Njau [1997] eKLR, the Applicant argues that the application seeks a review not an appeal and that post-judgment circumstances constitute sufficient reason to extend the decree. 12.On the threshold for review, the Applicant contends that she has already complied with the judgment by being registered as a shareholder of the 1 st Defendant. However, the existing directors cannot be traced, rendering the company incapable of convening meetings or appointing directors through its normal corporate procedures. The Applicant further states that the Companies Registry advised that the Court's orders be extended to include her appointment as a director, without which the transfer of the three suit properties cannot be completed. 13.The Applicant further argues that her appointment as director is necessary to give practical effect to the Court's judgment and safeguard the interests of the Estate of the late Leah Thogori Wahome. Citing Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 Others [2017] eKLR, she submits that courts should not issue orders that are incapable of implementation. She maintains that the continued absence of a director frustrates enforcement of the decree, delays distribution of the estate, and prejudices the beneficiaries. RULING ELC E403 OF 2022 4 of 11

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14.In conclusion, the Applicant urges the Court to find that it has jurisdiction to review the decree, that sufficient reason has been established, and that appointing her as a director of the 1st Defendant is just, necessary, and expedient to ensure the full implementation of the judgment. Analysis and Determination 15.Having considered the Notice of Motion, supporting affidavit and the Applicant’s written submissions the issues arise for determination: i. Whether the Applicant has satisfied the statutory and legal threshold for review. ii. Whether the Court has jurisdiction to appoint Applicant as a Director. 16.Order 45 Rule 1 of the Civil Procedure Act sets out the parameters for an application for review as follows: 1. 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 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 sufficient 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. (2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party RULING ELC E403 OF 2022 5 of 11

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except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. 17.It then follows that under Order 4, the applicant must demonstrate to the court that there has been 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 him at the time when the decree was passed. Secondly, the applicant must demonstrate to the court that there has some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other sufficient reason. 18.The applicants have raised the ground of ‘for any other sufficient reason’. The phrase ‘any other sufficient reason’ was illuminated in the case of Republic vs Cabinet Secretary for Interior and Co-ordination of National Government ex parte Abullahi Said [2019] eKLR:“A court can review a judgment for any other sufficient reason. In the case of Sadar Mohammed vs Charan Singh & Another {1963} EA 557 it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter.) Mulla in the Code of Civil Procedure (writing on Order 47 Rule 1 of the Civil Procedure Code of India), the equivalent of our Order 45 Rule 1, states that the expression, ‘any other sufficient reason’ means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any grounds set out…...would amount to an abuse of the liberty given to the tribunal under the Act to review its judgment. I also find useful guidance in Tokesi Mombili & Others vs Simion Litsanga [2004] eKLR where the Court of Appeal held as follows: RULING ELC E403 OF 2022 6 of 11

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“In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.” Where the application is based on sufficient reason it is for the court to exercise its discretion.” 19.The Applicant’s case is essentially that the existing Directors cannot be traced, the Company is consequently unable to operate effectively, and the Applicant’s appointment as a director would facilitate implementation of the Judgment and transfer of the three flats. These circumstances may explain why the Applicant considers the additional order desirable. They do not, however, demonstrate that the Court made an error in the Judgment or Decree, or that the Court failed to determine an issue which was before it. 20.More importantly, the Applicant has not demonstrated that the appointment of a director was a relief that was sought in the prayers in the plaint and determined by the Court in the Judgment and inadvertently omitted from the Decree. The Decree directed the Registrar of Companies to effect a change in shareholding of Associated Flats Limited by transferring specified shares to the Plaintiff as executor of the estate of the late Leah Thogori Wahome. The order now sought is that the Applicant herself be appointed a Director of the Company. 21. Review is intended to correct or address a recognized defect in an existing decision; it is not ordinarily the mechanism for obtaining a new substantive relief which was neither sought in the plaint nor granted in the Judgment. To allow a party to obtain a new substantive order merely because circumstances occurring after judgment have made implementation difficult would risk RULING ELC E403 OF 2022 7 of 11

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converting the review jurisdiction into a means of supplementing or varying the substance of the Judgment. 22.The Applicant’s submission that the appointment is necessary to give effect to the Judgment must therefore be considered against the actual terms of the Decree. The Court must enforce and give effect to its orders, but the power to facilitate execution cannot be used to create a substantive order that was not part of the adjudicated relief, unless the law otherwise permits such an order in the circumstances. 23.The Court notes that appointment of the Plaintiff as director of the 1st Defendant company is a substantive relief that is not analogous to discovery of new and important matter or evidence or mistake or error apparent on the face of the record. The Applicant has not shown that the claim that the directors of the 1 st Defendant could not be traced was not within her knowledge or could not be produced at the time when the judgement to be reviewed was made. 24.The Court is of the view that the reasons given for seeking review due to difficulty in implementing and/or executing the decree, may potentially justify an appropriate application in the execution or enforcement process, or proceedings, but they do not, on the material before this Court, satisfy the threshold for review. 25.The Court is of the further view that the judgement itself has provided a means for execution of the decree by authorizing the Deputy Registrar of the Court to execute all completion documents to facilitate transfer of the suit properties as provided under order number (c) of the decree. Further, the Applicant is not precluded from approaching the Court for execution of documents required to facilitate completion of the transfers. RULING ELC E403 OF 2022 8 of 11

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26.The Court is, in the circumstances, unable to find that the alleged difficulty in implementing the Decree, standing alone, constitutes sufficient reason within the meaning of Order 45 Rule 1. ii) Whether the Court has jurisdiction to appoint Applicant as a Director. 27.The Applicant's principal substantive prayer is for an order appointing her as a director of the 1st Defendant. The Applicant submits that such appointment is necessary to give practical effect to the Judgment and safeguard the interests of the estate of the late Leah Thogori Wahome. The Applicant further relies on the principle that a court should not issue orders in vain and submits that the appointment would facilitate the implementation of the Decree. 28.I have considered that submission and find that the principle that a court should not make orders in vain is well established. However, that principle does not confer upon a court jurisdiction which it does not otherwise possess. The Court must first satisfy itself that the relief sought falls within its jurisdiction before considering whether the order would facilitate the implementation of an existing decree. 29.The jurisdiction of a court flows from the Constitution or statute. A court cannot arrogate to itself jurisdiction beyond that conferred upon it by law. In the present case, the order sought is not simply an order concerning the implementation of the Decree. It is an order for the appointment of a director of a company, namely Associated Flats Limited. The relief therefore directly engages the statutory regime governing companies and the appointment and management of directors. 30.The applicable statute is the Companies Act, 2015. Section 3 thereof defines “the Court” for purposes of the Act to mean, unless some other court is specified, the High Court. The statutory definition is significant because the Applicant is not merely seeking execution of an existing land order. She seeks a RULING ELC E403 OF 2022 9 of 11

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substantive corporate order altering the management and directorship of the 1st Defendant Company. 31.The question before this Court is not merely whether the Applicant's appointment would assist in implementing the Judgment. The more fundamental question is whether this Court, sitting as the Environment and Land Court, has jurisdiction to make an order appointing a director of a company under the Companies Act. 32.In the present case, the Applicant's request that she be appointed a director is a distinct corporate relief. It concerns the composition and management of the 1 st Defendant Company. It is not an issue concerning the use, occupation or title to land. Nor is it an order that was contained in the Judgment and which merely requires implementation. The Applicant seeks an additional substantive order affecting the corporate structure of the 1st Defendant. 33.The fact that the Applicant's intended purpose is ultimately to facilitate the transfer of Flats Nos. 1, 2 and 4 does not change the legal character of the relief sought. The Court must look at the nature of the order sought. A prayer for appointment as a director remains a company-law relief even where the Applicant intends to use the powers of directorship to facilitate transactions involving land. 34.The Court is therefore unable to accept the Applicant's submission that it can make the order merely because it would give practical effect to the Judgment. The doctrine that a court does not act in vain cannot be employed to confer jurisdiction where the Constitution or statute has not done so. The Court may only make an order where it has jurisdiction to grant the particular relief. Final Determination 35.The Applicant has not established discovery of new and important evidence, an error apparent on the face of the record, or sufficient reason warranting review. RULING ELC E403 OF 2022 10 of 11

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The circumstances relied upon principally concern difficulties encountered in implementing the Decree and do not disclose a reviewable defect in the Judgment or Decree. The Court is also of the view that the difficulties encountered in implementing the decree are not insurmountable or that the only way of ensuring successful execution involves appointment of the Applicant as a director of the 1st Defendant 36. More importantly, the substantive relief sought, namely appointment of the Applicant as a Director of the 1st Defendant, was not part of the Judgment or Decree. It would therefore amount to introducing a new substantive relief through review. Further, being a company law relief, its determination does not fall within the jurisdiction of this Court as an Environment and Land Court. 37.In the result, the Applicant has failed to establish a basis upon which the Court can review or extend the Decree in the manner sought. The Application therefore fails. Accordingly, the Court makes the following orders: 1) The Notice of Motion dated 17th July 2025 is hereby dismissed. 2) There shall be no order as to costs, the Application not having been opposed. Delivered, dated and signed via Microsoft Teams this 17th day of September 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT The Ruling read in the presence ofM/S Namwoyo for the Plaintiff/Applicant. No appearance for the Defendant RULING ELC E403 OF 2022 11 of 11

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