https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4727

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NO. 168 OF 2009** **ETHICS AND ANTI-CORRUPTION COMMISSION (EACC) Formerly(KENYA ANTI- CORRUPTION COMMISSION) ……………………………………..………….. PLAINTIFF/ APPLICANT** **VERSUS** **BERNSOFT LIMITED …..…….… 1ST DEFENDANT/RESPONDENT** **EQUITRONICS LIMITED …..… 2ND DEFENDANT/RESPONDENT** **SAMMY SILAS KOMEN MWAITA ….. 3RD DEFENDANT/RESPONDENT** **MASTER POWER SYSTEMS LIMITED ….. PROPOSED 4TH DEFENDANT** **RULING** 1. Before the Court for determination are two (2) applications; the Notice of Motion dated 12th May 2025 by Sammy Silas Komen Mwaita (the 3rd Defendant) and another one dated 14th November 2025 by Master Power Systems Limited (the 4th Proposed Defendant). 2. By the Motion dated 12th May 2025, the 3rd Defendant prays for orders: 3. **Spent;** 4. **That this Honourable Court be pleased to review its Judgment delivered on 8th February 2023 disallowing the 3rd Defendant’s application and substitute the same with an order allowing the 3rd Defendant’s application to set aside the impugned Judgment;** 5. **That this Honourable Court be pleased thereon to grant the 3rd Defendant leave to defend the suit herein alongside the 1st and 2nd Defendants; and** 6. **That the cost of this Application be provided for.** 7. The application is supported by an Affidavit sworn by the 3rd Defendant and is premised on the grounds inter alia stated as follows: 8. **The Honourable Court delivered Judgment on the 16th February 2023 in favour of the Plaintiff;** 9. **The Defendants separately challenged the Judgment and sought to have it set aside;** 10. **The Judgment of the Court is not only absurd but ambiguous as on one hand it allows the 1st and 2nd Defendants application to set aside the judgment but disallows that of the 3rd Defendant seeking similar orders;** 11. **The decree dated 12th May, 2023 entered judgment against the Defendants jointly and severally and therefore by allowing the 1st and 2nd Defendants application whilst disallowing the 3rd Defendant’s application further heightens the uncertainty on the import of the decision of the court and whether the said ruling amends its judgment on joint and several liability by disallowing the 3rd Defendant’s application which would be absurd as the same is done without a hearing;** 12. **In the circumstances, it is therefore imperative that this Honourable Court reviews its Ruling delivered on 8th February, 2024 in order to cure the above absurdities and penumbras; and** 13. **If the Ruling is not reviewed and the hearing of the suit proceeds without the participation of the 3rd Defendant and at the end found that the 1st and 2nd Defendants lawfully acquired the suit property and there was no collusion with the 3rd Defendant, the Court process will be embarrassed and the 3rd Defendant shall have been condemned unheard.** 14. The Ethics and Anti-Corruption Commission (the Plaintiff) is opposed to the application. In a Replying Affidavit sworn on 13th May 2025 on its behalf by its Advocate on record Songole B. Asingwa, the Plaintiff avers that the Judgment pronounced on 16th February 2023 was not against the Defendants jointly and severally and that each Defendants were held liable to the extent of their actions. 15. The Plaintiff avers that the application does not meet the threshold under Order 45 of the Civil Procedure Rules as the same was filed two (2) years after the judgment was delivered. The Plaintiff further avers that the 3rd Defendant has not been desirous of proceeding with this case and that he had already filed a Notice of Intention to appeal and should proceed with the appeal. 16. Messrs. Bernsoft Limited (the 1st Defendant and Equitrnonics Limited (the 2nd Defendant) supported the 3rd Defendant’s application. 17. By the Chamber Summons dated 14th November 2025, Master Power Systems Limited (the Proposed 4th Defendant) prays for an order that it be enjoined in the suit as the 4th Defendant and that it be allowed to file its statement of Defence and trial documents. 18. The second application is supported by two Affidavits sworn by the Applicant’s Legal Officer one Oliver Tangara and is premised on the grounds inter alia, that; 19. **The Applicant is the registered owner of the property known as LR No. MN/I/2396 having acquired the same vide a transfer registered on 25th February 2009;** 20. **The present suit was initiated three (3) months after the Applicant acquired the suit property but the Plaintiff deliberately failed to include the Applicant’s name;** 21. **The Applicant has at all material times since acquiring the suit property enjoyed quiet possession and control of the suit property;** 22. **The Applicant has also learnt of the judgment initially entered in favour of the Plaintiff which cancelled the title of the suit property without the Applicant being heard; and** 23. **Though the said judgment has since been set aside and a fresh hearing ordered, the Applicant has not been joined in the suit and therefore the proceedings before this Court will be rendered defective.** 24. The Plaintiff is again opposed to the second application. In a Replying Affidavit sworn on its behalf by its investigator Dedan Okwama on 16th December 2025, the Plaintiff avers that at the time of filing the suit, the records in their custody revealed that the 1st Defendant was the previous owner while the 2nd Defendant was the current owner of the property. The Plaintiff further asserts that the Applicant ought to file appropriate documents in support of its claim of ownership. 25. The Plaintiff avers that the transfer captured as presentation number 374 and registered on 25th February 2009 on a purported grant filed by the Applicant does not exist. It is the Plaintiff’s case that the 1st and 2nd Defendants never disclosed that they transferred the disputed land to the Applicant and asserts that the 1st and 2nd Defendants are on a mission to delay this matter. 26. I have carefully perused and considered the two (2) applications as well as the respective responses thereto. I have similarly perused and considered the submissions by the Leaned Advocates representing the parties. 27. By the first application before the Court, the 3rd Defendant prays for a review of the Judgment delivered by the Court on 8th February 2023 and that the Court be pleased to grant leave to the 3rd Defendant to defend the suit alongside the 1st and 2nd Defendants. 28. On matters of review, Order 45 Rule 1 (1) of the Civil Procedure Rule, 2010 sets out the grounds 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.”** 1. Arising from the foregoing, it is evident that an application for review can only succeed on the grounds of: 2. **Discovery of a 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;** 3. **On account of some mistake or error apparent on the face of the record;** 4. **For any other sufficient reason; and** 5. **The application must be made without undue delay** 6. In the matter before me while the 3rd Defendant urges the Court to review the judgment delivered on 8th February 2023 on the grounds that it disallowed the 3rd Defendant’s application, it was apparent from a perusal of the Supporting Affidavit that what the 3rd Defendant was seeking was a review of the Court’s Ruling delivered on 8th February 2024. The 3rd Defendant has not offered any explanation whatsoever why his application for review was filed more than a year after the Honourable Justice L. L. Naikuni delivered the said Ruling. 7. In an erroneous reference to the Ruling at paragraph 8 of the Supporting Affidavit, the 3rd Defendant reveals the basis of his application and deposes as follows; **“8. That the above –referenced judgment of the Court is not only absurd but ambiguous as it on the one hand allows the 1st and 2nd Defendant’s application to set aside the judgment delivered on 16th February 2023 (it) would defeat logic to disallow another application seeking the same orders. In essence, the Court from the contradiction is seen to blow hot and cold.”** 1. As was stated by the Court of Appeal in ***National Bank of Kenya Limited Vs Ndungu Njau (1997) eKLR***; **“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 self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”** 1. In the instant case, the matters in dispute had been fully canvased before the Learned Judge. The Court made a conscious decision on the issues in controversy and exercised his discretion in favour of the 1st and 2nd Defendants. If the 3rd Defendant was of the view as he states that the decision of the Court was absurd and/or that the Court was blowing hot and cold, that could only be a ground for appeal but not for review. By proceedings with his application in the manner herein, the 3rd Defendant was otherwise urging this Court to sit on appeal in a decision made by a Court of concurrent jurisdiction. That is not permissible in law. 2. For those reasons, I did not find any merit in the 3rd Defendant’s Motion dated 12th May 2025 and I hereby dismiss the same with costs. 1. By the second application, the Applicant prays for orders that he be enjoined in the matter as the 4th Defendant and that upon the said joinder he be granted leave to file his Statement of Defence and trial documents. The Plaintiff is opposed to the application asserting that its investigations revealed that at the time of the filing of this suit the 1st Defendant was the previous owner while the 2nd Defendant was the then registered owner of the suit property. 2. The rules governing joinder of parties are found in Order 1 Rule 10 of Civil Procedure Rules which provides thus: **“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 plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”** 1. In ***Pravin Bowry –Vs- John Ward & Another (2015) the Court of Appeal cited with approval the decision in the Ugandan case of Deported Asians Custodian Board Vs Jaffer Brothers Ltd (1999) 1 EA 55 (SCU)*** and held as follows: **“For a person to be joined on the ground that his presence in the suit is necessary for effectual 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 Plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the Defendant cannot effectually 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.”** 1. In the matter herein, the Applicant asserts that it is the registered owner of the suit property having acquired the same pursuant to a transfer registered on 25th February 2009. It avers that the suit herein was instituted three (3) months after it acquired the property and that it was not included as a party. 1. From a perusal of the certificate of title, it is apparent that the same was issued on the 1st Defendant on 1st April 1998. It is also apparent that the title was later transferred to the 2nd Defendant before being transferred to the Applicant and noted on the record as presentation No. 374. 2. The Applicant avers that after its acquisition of the property, it has been enjoying quiet possession and control of the same. As the dispute herein concerns ownership of the suit, property, this Court is persuaded that the Applicant is a necessary party to aid the Court to effectively and completely adjudicate the dispute herein. By enjoining the proposed 4th Defendant, it will have an opportunity to defend its positon and the Plaintiff will equally get an opportunity to challenge the acquisition of the title. 3. In the premises, this Court makes orders as follows; 1. **The Notice of Motion dated 12th May 2025 is hereby dismissed with cost to the Plaintiff.** 2. **The Chamber Summons dated 14th November 2025 is hereby allowed with no order as to costs.** 3. **The 4th Defendant is hereby granted 21 days within which to file and serve a Statement of Defence, Witness Statement(s) as well as any documents it may wish to rely on at the trial.** 4. **The Plaintiff shall have 14 days after service by the 4th Defendant to file any statements and /or documents in rebuttal.** 4. It is so ordered. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 23rd day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) No appearance for the Plaintiff c) No appearance for the Defendants