Robison Onyango Malombo T/A Om Robison Company Advocates v Premier Flour Mills Limited

application. It is brought under Order 45 Rule 1, 51 Rule 1 of the Civil Procedure Rules and Sections 1A,1B, 3A, 34, 63 (e) and 80 of the Civil Procedure Act. The main order sought is that: “ The honorable court be pleased to revise the order of 12th January 2026, issued herein, directing deposit of Kes 10,000,000 in court, by adding an alternative security of an insurance bond/guarantee of Kes 10,000,000, issued by Trident Insurance Co. Ltd (a licensed insurer) as security for due performance of the outstanding judgment.” 3. The judgment debtors/applicants contended, in the grounds in support of the application, that while they were striving to raise the ordered security, they were finding the same onerous within the timelines given, in view of what they described as the “obtaining economic situation in Kenya”. They averred that they had obtained an insurance bond/guarantee from Trident Insurance Co. Ltd. for the amount ordered by the court. It was stated that an insurance bond/guarantee is “equally a perfect security, and payable /redeemable on order of the honorable court.” They pleaded for accommodation, stating that the order sought was a discretionary one that this court could grant. The application was supported by the annexed affidavit of Mr Diamond Hassan Lalji. 4. In response, the judgment creditor/respondent deposed to an affidavit sworn on 22nd January 2026, in which he stated that the insurance bond was an unacceptable security as Trident Insurance Company Ltd, which had been paying the debts of the judgment debtors, had defaulted on 2 occasion. Further, Trident had a long and chequered history of “defaulting on payment of valid claims and is not trustworthy. Mr Malombo stated that there was a likelihood of mischief, as Mr Diamond Hasham Lalji and Shahid Diamond Lalji, the judgment debtors/applicants herein, are directors of Trident Insurance Company Ltd and call the shots within the said institution. 5. Mr Malombo doubted the suitability of insurance bonds as they are conditional contracts which could be denied on account of technicalities or for breach of terms, which event would leave the judgment creditor with no recourse. He cast doubt on the financial standing of the said insurer and its ability to make the payment when called upon, in a volatile economic climate. The Proceedings 6. As the learned presiding judge is on leave until 10th March 2026, this court was allocated the matter on 21st January 2026. The court ordered that the application dated 21st January 2026 be served upon the judgment creditor/respondent, on or before 1 pm on 22nd January 2026, for an interpartes hearing on 23rd January 2026 at 11 am. Submissions by the parties 7. On 23rd January 2026, Mr Malombo objected to the hearing of the matter by this court on the basis of want of jurisdiction. His contention is that since Mr Justice J Ngaah is still seized of the matter but is away on leave until 10th March 2026, only the Chief Justice could appoint another judge to consider the review application. His objection is premised on Order 45 Rule 2 (3) of the Civil Procedure Rules. 8. Mr Bwire, learned counsel for the judgment debtors/applicants, submitted that it would be in the interest of justice for this court to hear the matter as the applicants had only up to 11: 59 pm on 26th January 2026 to deposit the cash, failing which execution would proceed. He urged that what the court was being called upon to do was to exercise a discretion in the interest of justice pursuant to sections 1A, 1B,3A, 34, and 63(e) of the Civil Procedure Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1094/eng@2026-01-28 2

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Analysis 9. The objection by Mr Malombo, while not expressed as a preliminary objection, raises a serious jurisdictional question which this court must grapple with, to wit, whether the court is currently correctly constituted to hear the review application. As that is the case, I must first consider the issue before the merits, for if it turns out that I do not have jurisdiction, and the trial court is the only court that could consider the application for review, I would have to put down my tools. 10. Order 45 Rule 2 (3) of the Civil Procedure Rules states that: “ (3) 11. If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.” There can be no doubt that Ngaah, J, is still attached to this station. He is on leave and will resume his sittings on 10th March 2026. Order 43 Rule 2 (3) of the Civil Procedure Rules is clear that it is the duty of the Chief Justice to appoint a judge who may hear the review application in the present circumstances. The Chief Justice has not appointed me as the judge who may handle this matter. In my view, it would be grossly wrong for me to determine the matter in such circumstances. Determination and Final Orders 12. That being the case, I am unable to consider the merits of the application dated 21st January 2026. The said application must await the Judge's return. Under those circumstances, I order and direct that the application dated 21st January 2026 be mentioned before Ngaah, J, on 18th March 2026 for directions on its disposal. 13. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 26TH DAY OF JANUARY 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Miller Bwire, instructed by Messrs Echesa & Bwire Advocates LLP, for the Judgment Debtors/Applicants; Mr Robinson Malombo, instructed by Messrs OM Robinson & Co. Advocates, for the Judgment Creditor/ Respondent; and Ms Bancy - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1094/eng@2026-01-28 3

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