Nawal Said Shimasy v Ahmed Mohamed Ahmed Bayusuf

and determination of this application inter parties, the Honourable Court be pleased to issue interim orders to compel the Respondent and the Interested Party to provide alternative, suitable furnished shelter for the Applicant and her children and to cater for any rent, deposit that may be required; 3. d. That pending the hearing and determination of this application inter parties and distribution of the matrimonial property, the Honourable Court be pleased to issue temporary injunction orders to restrain the Respondent and the Interested Party, by themselves, directors, servants, employees, agents, assigns or any persons acting under their instructions from demolishing, building, selling, transferring, leasing, charging, sub dividing, alienating, or any other adverse dealings of the matrimonial home, Title No Mombasa Island/Block XI/72, situate at Nelson Mandela Avenue, Tudor, Mombasa County; e. That pending the hearing and determination of this application inter parties, and distribution of the matrimonial property, the Honourable Court be pleased to issue orders to compel the Respondent and the Interested Party to provide alternative suitable furnished shelter for the Applicant and her children, and to cater for any rent, deposit that may be required; f. That the Honourable Court be pleased to appoint a valuer to assess the value and file a valuation report for the matrimonial property, Title No Mombasa Island/Block XI/72, situate at Nelson Mandela Avenue, Tudor, Mombasa County; g. That the Honourable Court be pleased to order that the Respondent and the Interested party execute all documents where necessary to facilitate the transfer of the Applicant’s portion of the matrimonial home Mombasa Island/Block XI/72 situate at Nelson Mandela Avenue, Tudor, Mombasa County, and in the absence or in default, the same be executed by the Deputy Registrar, Lands Registrar or Registrar of Titles. h. That the Honourable Court be pleased to order that the matrimonial property, Title No Mombasa Island/Block XI/72 situate at Nelson Mandela Avenue, Tudor, Mombasa County, be sold by way of private treaty and the proceeds distributed as per the Consent dated 14th September 2021; i. That the Honourable Court be pleased to order the Respondent and the Interested Party to compensate the Applicant for the loss of the household goods, personal effects, and replacement of documents; j. That the Honourable Court be pleased to order the Officer Commanding Makupa Police Station to enforce the orders of the Court; and k. That the costs of this application be borne by the Respondent and the 1st Interested Party. The application is premised on the grounds stated in the body of the application and also on the supporting affidavit of Nawal Said Shimasy, the applicant, herein. Vide the said affidavit, the applicant deposed that she filed an originating summons dated 7th July 2021 seeking orders to determine her beneficial interest in the suit property. The same was settled by consent, with agreement that her share in the suit property is 49% and the respondent’s share is 51%. That before the enforcement of the consent, they reconciled, resumed marriage, and continued living on the suit property until the night of 25th July,2025, when she was evicted from the suit property by the respondent and the interested party’s director. She further deposed that the respondent and the interested party’s director have orchestrated events that are aimed at harassing and intimidating her, which include taking a group of people to the house and making false claims, which resulted in her arrest on 24th July 2025 and release on 26th July 2025. While in police custody, the respondent and the interested party’s director took https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 2

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away everything from the home. She is unable to return home and needs alternative accommodation for herself and her children. 4. She averred that the impugned actions have subjected her and the children to psychological distress, anxiety, disruption to their routine in the home, and have further denied them a peaceful home environment. She contended that the suit property is registered in the name of the interested party, the respondent’s family business, and further that the respondent inherited the suit property from his late father during the pendency of the marriage, and the transfer to him has been pending. 5. She urged the court to allow the application in the interest of justice. 6. The respondent filed grounds of opposition dated 6th August 2025. The said grounds were based on the grounds that the consent order dated 14th September 2021 is invalid, null and void as it purports to affect the property Title No Mombasa/Block X1/72, registered in the name of Mohamed Ahmed Bayusuf &Sons Limited, without their joinder, involvement and their being heard; the court lacked jurisdiction to adopt the impugned consent order affecting a third party’s registered property rights/ interest without their involvement and that the court ought to set the record straight once on illegality has been brought to its attention. 7. The application dated 5th August 2025, filed by the respondent seeks the following orders:a. Spent; b. Pending the hearing inter-parties of this application, the ex-parte orders dated 30th July 2025, be stayed; c. Pending the hearing and determination of this application, there be a stay of the consent court order dated 16th September 2021 and all consequential orders arising therefrom; d. Pending the hearing and determination of this application, there be a stay of the ex-parte orders dated 30th July 2025; e. That this honourable court be pleased to discharge, vary and/or set aside the ex-parte court order dated 30th July 2025; f. That this honourable court be pleased to discharge, vary and/or set aside the court order dated 16th September 2021 and all consequential orders arising therefrom; and g. The costs of this application be provided for. 8. The application is based on the grounds therein and the supporting affidavit of Ahmed Mohamed Ahmed Bayusuf. He stated that the orders of 30th July 2025 were obtained through material nondisclosure and deceit. He averred that he is ill and requires round-the-clock medical attention, which is costly, and therefore is unable to engage in meaningful income-generating activities. The respondent further averred that he survives on handouts from his brothers, that he holds only 120 shares out of 1000 in the interested party, and that the company is now dormant and faces several liabilities. The respondent contended that the suit property is owned by the interested party. 9. The respondent stated that he only learnt of the consent through the application of 28th July 2025, and that if the orders sought by him were not granted, he would suffer irreparable loss, for example, by being unable to cater for any urgent medical needs which would render his health condition irredeemable, being cited for contempt, being victimized twice and being condemned to pay alimony. He urged the court to allow the application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 3

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10. The applicant filed a replying affidavit sworn on 6th August 2025, vide which she stated that the allegations of non-disclosure are untrue and reiterated that the respondent has always had full control and exclusive use and possession of the property. She stated that the respondent is an equal shareholder in the interested party with his brothers. 11. She deposed that the children are still minors and have lost their basic necessities, including clothing, school books, uniforms, and other learning materials. 12. Ms Shimasy averred that the respondent was aware of the consent as it was signed on different dates on 14th September 2021, and 27th September 2021. She urged the court to dismiss the application. 13. The respondent/applicant filed a supplementary affidavit sworn on 19th August 2025, vide which he reiterated his position and stated that he was forced to obtain eviction orders as the company, being the lawful owner of the suit property, demanded its return. He denied ever having executed the consent and reiterated that the property is not a matrimonial property, as it belongs to the company. He urged the court to allow his application as prayed. 14. The third application is dated 25th August 2025. Vide the said application, the interested party/ applicant seeks the following orders: a. Spent; b. There be a review and setting aside of the consent dated 14th September 2021 and the court orders adopting same of 16th September 2021; and c. The costs of the application be provided. 15. The application is premised on the supporting affidavit of Yusuf Mohamed Ahmed, sworn on 25th August 2025, vide which he stated that the interested party is the lawful registered owner of the suit property and the residential house therein, which was constructed in 1997-1998. The same was therefore not a matrimonial property. 16. The applicant/respondent filed a replying affidavit sworn on 2nd September 2025, by Nawal Said Shimasy, vide which she stated that at all material times she has been the beneficial owner of the suit property. Ms Shimasy contended that the circumstances under which the suit property was registered in the name of the interested party and the respondent’s beneficial interest were fully disclosed in the pleadings filed. The respondent acquired a beneficial interest during the marriage, and at all material times, she had exclusive occupation, control, and use of the suit property without any interference by the interested party, until recently, when the interested party and the respondent interfered with her occupation and eventually evicted her. 17. She stated that she has lived openly on the suit property with the knowledge of the interested party, whose director has visited the home until recently, without objection to her occupation, and that she made improvements thereon. Ms Shimasy averred that the suit property was the home they lived in during the marriage, and she has contributed to its improvements. That the respondent has at all material times had exclusive control of the property without any interference by the interested party. That she has a rightful claim for a matrimonial interest in the property, which right is capable of enforcement. The respondent acquired the beneficial interest in the whole suit property as part of his inheritance. 18. She stated that she was evicted after the respondent and the interested party orchestrated her arrest on the night of 25th July 2025, and that they had not accounted for her household goods and personal effects since the alleged eviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 4

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19. When the matter came up for hearing, Mr Mogaka, for the interested party, submitted that the interested party is the registered owner of the suit property, which was acquired long before the applicant’s marriage to the respondent. He submitted that at the time the consent was recorded, the interested party was not a party. Further that the consent was recorded on the basis of false information. He contended that the court cannot sanction illegalities. Counsel, relying on authorities, urged that if the owner is not involved, any consent recorded is a nullity. Mr Mogaka, therefore, prayed that the court do allow the interested party’s application. 20. Mr. Sitonik, learned counsel for the respondent, submitted that this court has jurisdiction to set aside a consent obtained through fraud, collusion, illegality, or agreement contrary to public policy. Mr Sitonik submitted that the respondent was hoodwinked into signing the consent, and that the said consent was entered into in the absence or ignorance of material facts. He urged that the respondent only became aware of the consent on 30th July 2025, when he was served with the applicant’s application. 21. Counsel submitted that the respondent’s application is merited and urged the court to grant the orders sought in the said application. 22. Ms Mwashushe, learned counsel for the applicant, reiterated the applicant’s position and submitted that the orders sought are unwarranted and that the application was filed after an unreasonable delay, and urged the court to dismiss the application. 23. She urged the court to allow the application dated 28th July 2025 and enforce the consent pending issuance of the distribution orders. 24. In rejoinder, Mr. Mogaka reiterated the interested party’s position and urged the court to set aside the consent order. 25. Mr Sitonik also reiterated the respondent’s position and submitted that the property was acquired in 1997, before the parties got married. He urged that no renovations had been done on the house, nor does the applicant have income. He contended that if the orders sought by the respondent are not granted, he will suffer irreparable loss. 26. Ms Mwashushe submitted that the house had already been demolished and that at the time the consent was being entered into, the interested party was not the owner. 27. I have considered the three applications carefully, the applicable law, and the authorities. The crux of the applications before me is the ownership of the subject property. Since there is an application seeking to set aside the orders this Court issued, I will consider the interested party’s application first. 28. The court in the case of PMM v JNW [2020] KEHC 1296 (KLR) stated: “ In setting aside ex parte orders, the court must be satisfied 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 sufficient cause. (See Philip Ongom, Capt v Catherine Nyero Owota Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003)). ..... In Ongom vs. Owota (supra), the Court stated thus: “.....However, what constitutes “sufficient cause” to prevent a defendant from appearing in court, and what would be “fit conditions” for the court to impose when granting such an order, necessarily depend on the circumstances of each case.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 5

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In the case of The Registered Trustees of the Archdiocese of Dar es Salaam vs. The Chairman Bunju Village Government & Others Civil Appeal No. 147 of 2006, the Court of Appeal of Tanzania while deliberating on what constitutes sufficient cause opined thus: “ It is difficult to attempt to define the meaning of the words “sufficient 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 fides, is imputable to the Appellant.” 29. Further, the Court of Appeal in the case of Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 others [2019] KECA 928 (KLR) stated that:“ The principles that appertain to setting aside a consent order are well established in a line of cases, including Brooke Bond Liebig vs Mallya (1975) EA 266, where Mustafa Ag. VP stated thus: “The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, eg, on grounds of fraud or collusion, that there was no consensus between the parties, public policy, or for such reasons as would enable a court to set aside or rescind a contract. In this case, the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts, and there could not have been any mistake or misunderstanding. None of the factors that could give rise to the setting aside of a consent agreement existed.” And in the case of Flora N. Wasike vs Destimo Wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that: “Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.” Essentially, the above-cited authorities are clear that a consent Order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts, or mistake, or for a reason which would enable a court to set it aside.” 30. The grounds for review are provided for by Order 45 rule 1(1) and (2) of the Civil Procedure Rules 2010, which provides that: a. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 6

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b. b. 31. 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. 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, 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. The Court of Appeal, in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR), stated that: “ Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules give the court unfettered discretion to make such an order as it thinks fit on sufficient reason being given for review of its decision. However, as it has been constantly stated, this discretion should be exercised judiciously and not capriciously.” 32. The court in the case of Smartkar Enterprises & another v Mary Kemunto Ogendo [2021] KEHC 7801 (KLR) stated that: “ It is now settled that for courts to review their decision, they must do so in compliance with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Mativo J in Nasibwa Wakenya Moses v University of Nairobi & Another [2019] eKLR observed that: “Section 80 gives the power of review, while Order 45 sets out the rules. The rules restrict the grounds for review. Put differently, the rules lay down the jurisdiction and scope of review. They limit it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay. ..... A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 7

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33. I have considered the application filed by the applicant, the respondent, and the interested party, as well as the applicable law and the authorities that I have referred to above. I have also taken into account the interested party's contentions that it owns the suit premises. 34. I note that the suit premises is owned by the interested party. The interested party is a limited liability company in which the respondent has a minority shareholding (120 shares out of 1000 shares). As a party owning the property in question, it should have been involved as its direct material interest was affected by the consent. 35. In my view, to the extent that the consent order purported to give the claimant/applicant ownership interest in Title No Mombasa Island/Block XI/72 situate at Nelson Mandela Avenue, Tudor Mombasa county, the said consent was not binding on the interested party. 36. The application by the respondent seeking to have the consent set aside on account of fraud is contested. Although the respondent alleged that he didn’t know what he was signing, I am unable to agree. The notice of intention to act in person was served upon the firm of Barayan & Co. Advocates. There has been no contestation regarding the said notice. The respondent agrees that he went to the claimant/applicant’s advocate's office and signed documents. There has been no cogent explanation why he didn’t seek to have the consent set aside earlier if he was not in agreement with it. 37. The respondent continued to allow the applicant to use the company asset as their home. In my view, the respondent has not shown good grounds to justify setting aside the consent order. 38. In my view, the respondent knew what he was doing and appended his signature willingly. 39. I don’t agree that there was fraud in the manner the consent was executed. In my view, the allegation of fraud was nothing but a ploy to defeat the consent. 40. I therefore find and hold that the consent is valid and binds the respondent. 41. That being the case, and noting that the interested party cannot be bound by a consent it did not execute, the orders that commend themselves to me are the following: a. I review the consent orders dated 14th September 2021, as adopted by the court on 16th September 2021, and order that Title No Mombasa/Block XI/72 be deemed as not being a matrimonial property as it belongs to the interested party; b. The application dated 5th August 2025 is dismissed; c. I allow the application dated 28th July 2025, in terms of prayers 6 and 10 of the same, as against the respondent only. 42. Costs are at the discretion of the court. I order that costs shall be in the cause. 43. It is so ordered. DATED AND SIGNED AT MOMBASA, THIS 16TH DAY OF DECEMBER 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Mogaka, for the Interested Party; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 8

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Mr Mwashushe, for the Claimant/Applicant; Mr Kago, holding brief for Mr Sitonik, for the Respondent; and Esther - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19249/eng@2025-12-16 9

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