[2023] KEELC 21843 (KLR)

Fresco Bushlands (K) Limited v Agricultural Development Corporation & another (Environment & Land Case E40 of 2022) [2023] KEELC 21843 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21843 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case E40 of 2022

FM Njoroge, J

November 30, 2023

Between

Fresco Bushlands (K) Limited

Plaintiff

and

Agricultural Development Corporation

1st Defendant

Swift Auctioneers

2nd Defendant

Ruling

1. For determination is the 1st Defendant’s Notice of Motion dated 1st August 2023 brought under Section 80 of the Civil Procedure Act and Order 45 and 51 of the Civil Procedure Rules seeking the following orders;a.Spentb.That the execution of this Honourable Court’s ruling dated 26th June 2023 be stayed pending the hearing and determination of this application.c.That the ruling issued by this Honourable Court on 26th June 2023 in Malindi ELC Case No. E040 of 2022 be reviewed on the ground that the court was misinformed as to the facts of the case.d.That this honourable court be pleased to visit the alleged site where the alleged cattle are being held in order to make an independent observation.

2. The application is anchored on the grounds set out on its face and the supporting affidavit of Levy Murasi Mulupi, the Senior Complex Manager of Agricultural Development Corporation, Galana/Kulalu Ranch who deponed that the genesis of the current suit is that the 1st Defendant issued a demand notice to the Plaintiff for payment of rent arrears being the sum of Kshs. 192, 480,000 to which demand notice the Plaintiff failed to respond, resulting to the 1st Defendant levying for distress through the 2nd Defendant. He stated that on 6th June 2022 the 2nd Defendant served the Plaintiff with two proclamation notices and on 6th July 2022 the 2nd Defendant seized 774 cows and auctioned them within 72 hours on site on 9th July 2022 in accordance with the Distress for Rent Act.

3. It was also stated that on 12th July 2022, the 1st Defendant herein received a Notice of Motion, a Plaint and a court Order issued by Hon. Justice Odeny on 12th July 2022 restraining the Defendants herein from dealing with seized cattle pending the hearing and determination of the matter. Further, on 22nd July 2022 the 1st Defendant received another application which sought inter alia that the managing directors of the 1st and 2nd Defendants be held in contempt for disobeying the orders issued by Justice Odeny on 12th July 2022. It was further stated that the court delivered a ruling on 26th June 2023 determining that the 1st Defendant was still in possession of some of the seized cattle and issued an order for stock taking in presence of the Plaintiff to determine the number of cattle in possession of the 1st Defendant. It was his statement that the Defendants are not in possession of any cattle at the moment and the averment by the plaintiff that the cattle were moved from Galana offices to Ganda by 3rd parties on behest of the 1st Defendant is misguided. It was the 1st Defendant’s position that the court visits the site where the Plaintiff alleges the cattle are being held to determine whether or not the cattle are actually there.

4. The Plaintiff filed a replying affidavit dated 21st November 2023 sworn by Bare Muhumed the Operations Manager of the Plaintiff stating that the instant application seeks to appeal against the decision of Hon. Lady Justice Odeny rendered on 23/06/2023 and consequently bad in law; that the 1st Defendant is now coming out to justify that there was no auction that was conducted and that the alleged sham exercise was merely up for their illegalities. Mr. Bare Muhumed also stated that he visited ADC Kulalu offices on 9th, 10th and 11th July 2022 and met Mr. Levy Murasi Mulupi who showed him the cattle were in his custody and the same had not yet been sold. He also deponed that on 07/03/2023 Mr. Mulupi appeared in court and upon questioning he was unable to account for the auction.

Determination 5. On 3rd October 2023, the court issued directions that the application was to be canvassed by way of written submissions. At the time of writing this ruling, I note that only the Plaintiff’s submissions dated 21st November 2023 were in the file and there is no trace of the 1st defendant’s submissions. I have considered the application, the response thereto, the Plaintiff’s submissions as well as the authorities relied upon. The issue for determination is whether the orders for review sought are merited.

6. Section 80 of the Civil Procedure Act provides that: -Any person who considers himself aggrieved-a)By a decree or order in which an appeal allowed by this Act, but from which no appeal hasb)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.”

7. The provisions of Order 45 Rule 1 provides for the review of a decree or order 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 orb)By a decree or order from which no appeal is hereby allowed, and from whom 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 the judgment to the court which passed the decree or made the order without unreasonable delay.”

8. There are three aspects that can be deduced from Order 45 Rule 1(b) abovea)Discovery of new and important matter or evidence.b)Mistake or error apparent on the face of the record.c)Any other sufficient reason.

9. From the above provisions it is clear that while Section 80 of the Civil Procedure Act gives the court the power to make orders for review, Order 45 sets out the conditions to be met in a review.

10. In Republic –vs- Public Procurement Administrative Review Board & 2 Others the court held that: -Section 80 gives the power of review and Order 45 sets out rules. These rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review.”

11. In the present application, I am of the view that the Applicant has not demonstrated that there has been discovery of new and important matter or evidence, or that there is an error apparent on the face of the record. Review can also be allowed for any other sufficient reason. The expression “sufficient reason” means a reason sufficiently analogous to those specified in the rule. It is my opinion that in the present application, the applicant is asking the court to sit on its appeal which jurisdiction the court does not possess. In the circumstance therefore, it is my finding that the order for review sought is not merited and the same is disallowed. The ruling dated 26th June 2023 is yet to be appealed and therefore the orders issued on even date remain in force. The consequence is that the application fails for want of merit and the same is hereby dismissed with costs.

DATED, SIGNED AND ISSUED AT MALINDI ON THIS 30TH DAY OF NOVEMBER 2023. MWANGI NJOROGEJUDGE, ELC MALINDI.