https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3682

Mutiso v Cape Holdings Ltd & another (Environment and Land Appeal E207 of 2024) [2026] KEELC 3682 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3682 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E207 of 2024 JG Kemei, J June 11, 2026 Between Bootsy M Mutiso Appellant and Cape Holdings Limited 1st Respondent Dolce Cavallo Kenya Limited 2nd Respondent (Appeal against the Ruling and order of Hon. P. Achieng CM delivered on 7/11/2024 in MCELC NO E135 of 2022) Judgment 1.The background leading to the instant appeal is traced back a lease between the parties dated 1/11/2017. 2.The 1st Respondent leased premises to the 1st Respondent for the purpose of operating a five-star hotel and restaurant business at the upscale premises located at the Dusit building in Nairobi. It is averred that, following the COVID-19 pandemic and the terrorist attacks at the Dusit building, the business did not recover, resulting in rent defaults. By the letter dated 2/7/2020, the 2nd Respondent notified the Landlord, Cape Holdings, of its intention to terminate the lease, effective 31/3/2020, due to a decrease in business activity. On 13/10/2020, the Appellant agreed to guarantee the repayment of the outstanding rent in consideration of the lease termination. The parties entered into a deed of settlement dated 26/10/2020, which, among other things, outlined the resolution of the outstanding rent. The Appellant also executed a personal guarantee dated 21/10/ 2020, undertaking to ensure the repayment of rent and other charges under the lease. 3.That notwithstanding, it appears that the tenant failed to remit the rent, and the 1st Respondent, through the plaint dated 5/4/22, filed a suit against the Appellant and the 2nd Respondent seeking judgment for the recovery of outstanding rent amounting to Kshs 530,433 and USD 26,912.00. 4.In denying the Plaintiff’s claim, the defendants, in their defence dated 18/5/2022, argued that the deed of settlement was signed under duress, characterized by constant pressure, harassment, and attacks on the 1st defendant. The defendants also cited the COVID-19 pandemic as a factor in their circumstances and expressed optimism about returning to profitability and fulfilling their rent obligations. 5.By a Notice of Motion dated 14 /6/2022, the Plaintiff sought orders for judgment on admission against the Defendants and, in the alternative, for the Defendants' defence to be struck out and for judgment to be entered as prayed, chiefly on the basis that the Plaintiff's claim was not contested, as evidenced by the notice of termination, the deed of settlement, and the guarantee signed by the 2nd defendant. The Defendants did not oppose the application. The Court, by its ruling delivered on 21/9/2022, allowed the application with interest. 6.On 22/11/2022, in their notice of motion, the defendant sought a review of the orders issued by the Court on 21/9/2022 on three grounds, namely that; the verifying affidavit sworn by the Plaintiff's Finance Manager was defective for lack of authority, as the company was already in receivership and should have been signed by the appointed administrator; their counsel ceased communication with the defendant and failed to inform them of developments in the case; consequently, they were unaware of the application or the judgment on admission, and were only made aware through a message from the Judiciary Case Tracking system[CTS] indicating that the ruling had been delivered and the case closed; their defence demonstrates triable issues and that they are at risk of condemnation without being heard unless the orders are reviewed. 7.The Plaintiff filed grounds of opposition dated 29/11/2022 in response and asserts that the administrator possesses explicit authority under Section 576 of the Insolvency Act to perform all actions related to the exercise of statutory powers under the Act; that the Finance Manager signed the verifying affidavit under the administrator's authority; and that the defendants have acknowledged the indebtedness. Furthermore, no factual or legal grounds have been established to justify the setting aside of the Court's judgment. 8.The Court, in its ruling dated 12/4/2023, dismissed the application filed on 22/11/2022 on the grounds that the Finance Manager had been authorised by the administrator of the Plaintiff company to swear the verifying affidavit. Furthermore, he deposed to facts within his knowledge as an Accountant. Additionally, the debt had been explicitly acknowledged in the defence, with non-compliance attributed to the COVID-19 pandemic. 9.Unrelenting, the Defendants filed another application dated 10/8/2023, seeking a stay of execution of the judgment of 19/9/2022 and permission to pay the decretal amount in monthly instalments of Kshs 50,000/- or such other amount as the Court may order. The Defendants informed the Court that they were keen to satisfy the decree but were unable to pay the debt in a lump sum because their only source of income, the business, had collapsed. Their proposal to the plaintiff had been declined. 10.In its response, the Plaintiff asserted that the application is but a tactic to postpone the enforcement of the judgment and dismissed it as frivolous. Furthermore, the Plaintiff observed that the proposal to pay by instalments of Kshs 50,000/- each would span 98 months, thereby depriving the Plaintiff of the commercial benefit of the decree, and instead proposed a sum of Kshs 300,000/- 11.According to the ruling dated 18/3/24, the Court dismissed the application on the grounds that the 2nd defendant failed to demonstrate that the business was his sole source of income, despite his willingness to increase the instalment amount to Kshs 100,000/-. Moreover, no evidence of incapacity to pay the decretal amount was provided, such as KRA tax returns or bank statements. 12.On 4/4/2024, the defendants filed a notice of motion seeking a review of the judgment rendered on 18/3/2023, and a stay of execution of the judgment dated 19/9/2022. It was stated that the defendant possessed new information in the form of a profit and loss statement of Airside Solutions Ltd, his business, which was not available to the 2nd Defendant at the time of filing the application on 10/8/2023, nor at the time of the ruling issued on 18/3/2024. Additionally, it was argued that enforcement of the judgment could be levied against the defendant’s tools of the trade, potentially depriving him of the means to support himself and his family; The defendant has obtained a bank statement demonstrating an income of Kshs 50,000/- per month. 13.The Plaintiff opposed the application by its grounds of opposition dated 15/5/2024, on the basis that the grounds raised in the application are grounds of appeal, not review, and were intended to delay the execution of the judgment. 14.The Court delivered its ruling on 7/11/24, dismissing the application on the grounds that the statement annexed by the applicant was either in his possession or could have been obtained at the time of filing the application, and hence does not constitute new and important information. 15.Aggrieved by the decision of the Court, the Appellant has filed this appeal on the following grounds;a.That the Learned Chief Magistrate in law and in fact by dismissing the Application of 4th April, 2024 seeking to inter alia, set aside and review the trial Court’s ruling of 18th March, 2024 to the extent that the Court had been sought to allow the Application dated 10th August, 2023 on the following grounds;i.That the Appellant, in the dismissed Application of 10th August, 2023 (which application was the basis of the dismissed review Application of 4th April, 2024), was seeking to settle the decretal sum in instalments. That application was dismissed for want of his statement of affairs.ii.That the dismissed review Application, now subject of this appeal, was deemed unmeritorious, as the trial Court concluded that there was no new information discovered and/or availed by the Applicant to warrant the review orders being issued.iii.That the trial Court’s findings were erroneous on account of the fact that the Appellant had obtained and availed the new information being his statement of affairs which be field in support of the review application.b.That the Learned Chief Magistrate erred in law and in fact by dismissing the evidence filed in support of the dismissed review application to the extent that the Court held that the Appellant was in possession of the information all along which was never the case.c.That the Learned Chief Magistrate erred in law and in fact by failing to consider that the Appellant had proved that he became aware of the requirements of the new information relied upon in support of the review application when his application dated 10th August, 2023 was dismissed, which fact was undisputed.d.That the Learned Chief Magistrate erred in law and fact by framing her own issues and evidence in dismissing the review application without considering the submissions, affidavit and evidence all presented in support of the review application in its totality as read in tandem with the ruling of 18th March, 2024.e.That the Learned Chief Magistrate erred in Law by failing to exercise judicious discretion fairly in granting the Appellant an opportunity to settle the decretal sum in the mode and fashion he had sought despite providing earning contained in the statement of affairs.f.That the Learned Chief Magistrate’s decision was arrived at in a cursory and perfunctory manner and the ruling against the Appellant, therefore, is unlawful and against the spirit of the Constitution of Kenya. 16.Consequently, the Appellant sought the following orders;a.That the appeal be allowed with costsb.The ruling delivered on 7/11/24 be set aside, varied and or reviewed. The written submissions 17.The Appellant submitted that he provided a statement of accounts in his application dated 4/4/22, however, the Court proceeded to dismiss his application on the basis that it did not meet the threshold for review. He obtained the statement of accounts for Airside Solutions Limited, one of his businesses, following the 2nd Respondent's collapse. He did not possess the statement prior to the delivery of the ruling and consequently, he could not produce it in time despite exercising due diligence. Furthermore, he was unaware whether the statement was necessary, given that the 1st Respondent did not raise it in its response to the application. The necessity for the statement was imposed by the Court without affording the Appellant the opportunity to produce it for the Court's consideration. The statement substantiates that the Appellant is only capable of meeting an instalment of Kshs 50,000/-. Having now produced the statement, he urged the Court to permit a review and to grant his application. 18.Despite directions to file written submissions, none of the Respondents complied. Analysis and determination 19.Having considered the grounds and the record of appeal in its entirety, and the written submissions, the key issue to be determined is whether the appeal is merited. 20.The substantive powers for review of a judgement or an order made by a Court are provided for under Section 80 of the Civil Procedure Act which states;“Any person who considers himself aggrieved— (a) by a decree or order from which(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. Rules Committee. 39 of 1956, s. 5, 14 of 1977, Sch. 13 of 1978, Sch. 10 of 1997, 6 of 2009, Sch. part x—r 21.While Order 45 Rule 1 of the Civil Procedure Rules 2010 provides the procedural requirements, Section 80 of the Civil Procedure Act, the substantive law provides that: -“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 22.In the case of Pancras T Swai Vs Kenya Breweries Limited [2014] EKLR, the Court of appeal stated that for an applicant to succeed in an application for review, they must establish to the satisfaction of the Court any of the following three main grounds;a.That there is discovery of new and important evidence which was not available when the judgment or order was passed, despite having exercised due diligence orb.That there was a mistake or error apparent on the face of the record orc.That sufficient reasons exist to warrant the review soughtd.That the application was filed without unreasonable delay. 23.The Court of Appeal in the case of Mzee Wanjie & 93 others –vs- A.K. Sakwa & 3 others [1982-88] 1 KAR 465 Chesoni, Ag JA enunciated the principles to be followed by a Court before which an application for review based on discovery of new evidence is made as follows:-“a)The applicant must show that the evidence could not have been obtained with reasonable diligence for use at the trial;b)The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;c)The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” 24.In this case, the Appellant sought review of the judgment to allow payment of the decretal amount in instalments of Kenya Shillings Fifty Thousand Only (Kshs.50,000/-) each. On determination, the Court dismissed the application on the basis that the Appellant had failed to satisfy the Court of his inability to pay the default amount. The Court explained that some of the documents the Appellant would have placed before the Court in support of his explanation would be Kenya Revenue Authority [KRA] and bank statements, for example. 25.Having failed to support the averment of his inability to satisfy the decretal amount in full, and his application for review having been dismissed with reasons, the Appellant filed the application, the subject of this ruling with the intention of meeting the reasons for the dismissal. In dismissing the application, the Court stated;“The Court craved to see KRA returns of the applicant herein, after the company was wound up. Such returns would paint the picture to the Court of the tax bracket the applicant resides in. None were annexed as evidence. The Court also craved bank statements proving the applicant is unable to settle the decretal amount in instalments. Since it has not been alleged that he does not possess any, none were annexed. These pieces of evidence would have painted a picture as to whether liability to pay the decretal amount in lumspum was genuine.” 26.The CoA in D.J Lowe & Company Limited VS Banque Indosuez [1998] KECA 108 (KLR) in dismissing an appeal challenging a Ruling that declined review based on new evidence emphasized that where such a review application is based on fact of the discovery of fresh evidence the Court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing. 27.In this case, the Appellant sought to produce a statement of accounts, being the profit and loss of a company, namely Airside Solutions Limited, for the period January – March 2024. The statement is an internal document prepared by the company regarding its financial affairs. 28.The application under review was submitted on 4/4/2024, indicating that the statement of accounts was either in the possession of or should have been in the possession of the Appellant, considering it is an internally generated document. The Appellant has not elucidated how he acquired the documents, the due diligence he undertook to obtain them, or the reasons for not initially annexing the statement to the application. The only reasonable inference is that the Appellant adduced the statement after the delivery of the ruling. This was acknowledged by the Appellant, who stated he was unaware of the documents' necessity. He further alleged that the Court imposed it on him without affording him an opportunity to submit it. It is not within the Court's purview to dictate which documents an applicant chooses to rely upon in his case. The guiding principle remains that he who asserts must prove. 29.Suffice to state that at the time the Court determined the review application, there was no evidence to support the Appellant's averment of inability to meet the payment of the decretal amounts in instalments. The Court has determined that the Appellant sought to avail the statement after the ruling to patch up his weak case. Thirdly, the Court concurs with the trial Court that the grounds of the application for review did not meet the requirements established under Order 45 rule (1) insofar as the discovery of new and important evidence is concerned. 30.Final order for disposala.In the upshot, the appeal is unmerited.b.It is dismissed. Each party to meet their own costs. 31.Orders accordingly DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 11TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Mr Owiye HB for Mr Ochieng for the AppellantMr Wepo for the RespondentC/A – Ms Kendi