[2022] KEHC 16552 (KLR)

Harit Sheth Advocates v Principal Secretary, Ministry of Interior and Co-ordination of National Government & 4 others (Commercial Case E518 of 2020) [2022] KEHC 16552 (KLR) (Commercial and Tax) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16552 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E518 of 2020

DO Chepkwony, J

December 6, 2022

Between

Harit Sheth Advocates

Plaintiff

and

Principal Secretary, Ministry of Interior and Co-ordination of National Government

1st Defendant

Attorney General

2nd Defendant

Afrison Export Import Ltd

3rd Defendant

Hueland Limited

4th Defendant

Okiya Omtatah Okoiti

5th Defendant

Ruling

1. Before this court for determination is a Notice of Motion Application dated January 18, 2022 seeking for orders that;a.This Honourable Court be pleased to set aside and/or vacate the orders given on March 12, 2021 granting leave for the 5th Defendant to participate in this matter and staying this matter pending determination of Petition No 1488 of 2016 and Civil Appeal No 86 of 2017;b.This matter do proceed for hearing and determination;c.Costs be provided for.

2. The application is premised on the grounds on its face and in the annexed Supporting Affidavit of Harith Sheth sworn on the even date. It is stated therein that:a.This suit concerns the payment of the balance due from the Government of Kenya for the purchase of Land Reference No 7879/24 from the 3rd and 4th Defendants pursuant to a consent decree of April 8, 2013 in the High Court Commercial Case Number 617 of 2012 for the sum of Kshs 2,400,000,000/- (Two Billion Four Hundred Million).b.The Government has so far paid the sum of Kshs 1,878,339,170. 00 (One Billion Eight Hundred and Seventy-Eight Million, Three Hundred and Thirty-Nine Thousand One Hundred and Seventy) to the 3rd and 4th Defendants or to their order leaving a balance of Kshs 521,660,830. 00 which is being sought in this matter to be paid through the Plaintiff’s firm.c.Petition No 1488 of 2016; Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe, Afrison Export Import Limited, Huelands Limited & Others, is with regard to compensation paid to the 1st and 2nd Defendants therein for acquisition by the Government of their property Land Reference No 7879/25 which is a different property from the property in this suit and the causes of action are also fundamentally different.d.Civil Appeal No 86 of 2017 Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe Afrison Export Import Limited, Huelands Limited & Others, is again not related to the issues in this matter.e.had the 5th Defendant fully disclosed the same to the Honorable Court at the hearing of the application, the Honorable Court would not have granted the orders of March 12, 2021. f.the Plaintiff's counsel was not present in court on the said March 12, 2021 and the Plaintiff was therefore not afforded an opportunity to be heard on the said application culminating in the said impugned orders.g.the said orders of March 12, 2021 are highly prejudicial to the Plaintiff who has issued several professional undertakings to third parties on the instructions of the 3rd and 4th Defendants to be paid from the said balance of the purchase price due and outstanding from the Government.h.the 5th Defendant will not be prejudiced in any manner whatsoever should the orders sought herein be granted as he can still pursue the said other cases to their logical conclusion and the same will not affected by the reliefs sought in this suit.i.the said property purchased by the Government being Land Reference No 7879/24 is already being occupied by the General Service Unit of the National Police Service and all that remains is the payment of the said balance of the agreed purchase price. That, it is therefore in the interests of justice that the orders sought be granted to enable this matter be heard and determined on its merits.

3. The 1st and 2nd Respondents opposed the Application vide the Replying Affidavit of Ms Wanjiku A Mbiyu sworn on May 25, 2022 and its stated therein that:-a.The Plaintiff/Applicant's Application is incompetent, misconceived, vague and is an abuse of the court process and not grounded on any provisions of either the Civil Procedure Act and the Rules thereunder nor any other law.b.The orders sought by the Plaintiff/Applicant are tantamount to a review of the orders issued by Hon. Mativo on March 12, 2021 which is still extant.c.The Plaintiff/Applicant has not met the mandatory pre-requisite for review of an order issued by the court, as encapsulated in the Civil Procedure Rules to effectively and sufficiently demonstrate that there exists any mistake or error apparent on the face of the recordd.The only recourse that the Applicant has is to prefer an appeal on the orders issued on March 12, 2021, which the Applicant failed to do so within the stipulated timelines.e.The Applicant has failed to demonstrate its absence from court on March 12, 2021, when the matter came up for hearing.f.There has been inordinate delay in the filing of the instant application, which delay has not been explained.g.The aforementioned notwithstanding, the current suit by the Applicant is connected and related to other suits touching on the larger property known as LR 7879/4 and that the current suit before this Honourable court, which was stayed pursuant to the orders issued by Honourable Mativo on March 12, 2021 is in relation to issues touching on LR 7879/4. h.It is incorrect for the Applicant to state that ELC Petition Number 1488 of 2016, Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe v Afrison Export Import Ltd and Civil Appeal No 86 of 2017 Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe v Afrison Export Import Ltd are not related to the suit dated 2nd December, 2020 by the Applicant herein. That the Applicant has not tendered any sufficient cause or any cause at all to warrant this court to exercise its discretion in the Applicant's favour.i.In the suit dated December 2, 2020, which suit was stayed by the Honourable Court, the Plaintiff/Applicant is seeking for the enforcement of the Professional undertakings it issued, to be enforced by a third party, who is not a party to the said Memorandum of Understanding and/or Professional undertakings.j.An Advocate who issues a professional undertaking bears the risks and should not be heard to complain that it is too burdensome and that someone else should be compelled to enforce the said Professional undertakings.k.The issues in dispute in the stayed suit relate to the Applicant herein and the 3rd and 4th Defendant, and that the 1st and 2nd Defendants, have been unnecessarily dragged into this suit.l.From various communication exchanged by government agencies, the Ethics and Anti-Corruption Commission (EACC), the agencies have been investigating the matter revolving around this suit land and did advise the Attorney General that no payment should be released by any government agency in relation to LR 7879/4 and related parcels awaiting the finalization of the said investigations. That the application is therefore bereft of merit and ought to be dismissed with costs.

4. The 3rd and 4th Respondents opposed the Application vide the Replying Affidavit of Francis Mburu Mungai sworn on March 23, 2022 and stated that:-a.This suit concerns an alleged claim against the Defendants by the Plaintiff for money which is not due from the 3rd and 4th Defendants.b.The Plaintiff was not the 3rd and 4th Defendants lawyer in HCC NO 617 OF 2012 and cannot seek to dictate to whom the 3rd and 4th Defendants' money in the matter will be paid.c.The Plaintiff's application is incurably defective and is an abuse of this Honorable Court's process, the Interested Party's application dated February 24, 2021 having proceeded on the merits on March 12, 2021 with no explanation being given as to why the Plaintiff's alleged lawyer did not participate in the proceedings if he had anything to say. The Plaintiff had the opportunity to present whatever material they had on that application but on which they choose not to for reasons best known to them.d.The application having been heard and determined,the Plaintiff can only appeal against the said order if aggrieved but cannot purport to reopen the hearing of that application unprocedurally as he has purported to do since there are no grounds whatsoever to warrant the setting aside/vacation of the orders of 21st March, 2021. e.'It is in the interest of justice that the orders of March 21, 2021 remain untouched as they were validly issued after a proper hearing.'

5. The 5th Respondent on the other hand opposed the Application vide his own Replying Affidavit sworn on April 4, 2022 and stated that:-a.'The Plaintiff or the 3rd and 4th Defendants are not owed any money in any form by the Kenyan State, including pursuant to the fraudulent consent decree of April 8, 2013 in High Court Commercial Case Number 617 of 2012. 'b.On the contrary, the three parties are supposed to refund the Kenyan taxpayer a total sum of Kshs 1,878,339,170. 00 (One Billion Eight Hundred and Seventy-Eight Million, Three Hundred and Thirty-Nine Thousand One Hundred and Seventy Shillings) plus interest, which they were fraudulently paid pursuant to a consent decree of April 8, 2013 in High Court Commercial Case Number 617 of 2012. c.The National Land Commission including the National Assembly and the Senate investigated the controversies surrounding the suit property and determined that it is government owned land.d.From the Judgment and the aforementioned reports, it is clear that the 3rd and 4th Defendants are supposed to refund to the Government of Kenya some Kshs 1,500,000. 000. 00 (One Billion Five Hundred Million) which they were fraudulently paid.e.It is, therefore, in the public interest that the Government does not pay them another cent further.f.The issues herein are intertwined with those in Nairobi ELC Petition No 1488 of 2016 and Nairobi Civil Appeal No 86 of 2017. g.Both suits, which were filed in extreme public interest, will be compromised and the public and 5th Respondent will be prejudiced if the orders which were issued herein on March 12, 2021, granting leave to the 5th Respondent to be joined to this matter pending determination of Petition No 1488 of 2016 and Civil Appeal No 88 of 2017, are lifted, set aside and/or vacated.h.The 5th Respondent made full disclosure of the issues and, in support of his application, he annexed a bundle of documents marked as Exhibit OOO-1, containing copies of Orders issued by the ELRC (Hon Justice Okong’o) on December 13, 2016 in Petition No 1488 of 2016; Decree issued by the High Court (Hon Justice A Mabeya) on February 12, 2013 in Civil Case No 617 of 2012; and a Record of Appeal Cover Page and the Memorandum of Appeal in Civil Appeal No 86 of 2017. i.Having elected not to participate in the hearing of the application, which they had duly and effectively been notified of, the Plaintiff cannot turn around now and claim that it was 'not afforded an opportunity to be heard on the said application culminating into the said impugned orders.j.The annexed Supporting Affidavit in support of the Application herein does not provide any evidence to support the deponent’s averments and, therefore, it is incompetent that it ought to be struck out with costs.k.The Notice of Motion is incompetent as it does not display the orders it wants this Honourable Court to quash as the Plaintiff has not established any basis for filing the instant suit, especially as against the 3rd and 4th Defendants on whose behalf it purports to act.l.It is not comprehensible that an advocate can sue his clients in pursuit of money allegedly owed to them and under normal circumstances, this suit ought to have been instituted by the 3rd and 4th Defendants, and not by the Plaintiff.m.With utmost respect to the Plaintiff and for want of a better way of putting it, the 5th Respondent reasonably suspects that the Plaintiff is trying to escalate the theft of the public funds in issue by ‘stealing’ it directly from the Government and not through the 3rd and 4th Respondents.n.Even if the claim herein were genuine, and which the 5th Respondent believes it is not, there is absolutely no mechanism under the law for paying the Plaintiff in the circumstances herein. The 5th Respondent urges the court to dismiss this Application with costs.

6. By court’s directions issued on February 9, 2022 to the parties, the Plaintiff, 1st, 2nd and 5th Defendants confirmed filing their submissions while the 3rd Defendant opted to rely on his Replying Affidavit.

Determination 7. To determine the application dated January 18, 2022, I have read through the grounds as set out on its face and Supporting Affidavit sworn by Harith Sheth, the Replying Affidavits filed by the Respondent on March 28, 2022 and May 23, 2022 together with the Grounds of Opposition in opposition of the application. I have also read through the respective filed submisoins filed alongside the cited authorities and statute law. The issues for determination are:-a.Whether the orders issued on March 12, 2021 granting the 5th Defendant leave to participate in this matter should be set aside and or reviewed.b.Whether the matter should be stayed pending the determination of Petition No 1488 of 2016 and Civil Appeal No 86 of 2017.

8. What the Applicant is asking this court to do is set aside the orders issued on June 10, 2021 in the pretext that they were issued ex-parte in its absence. In response thereto, the Respondents in their pleadings and submissions have argued that the Applicant is seeking for review of the said orders. Therefore, this court is required to first establish whether the Applicant is seeking for a review of the orders herein or setting aside the same for having been issued ex-parte.

9. From the record, the court in issuing the orders on March 12, 2021, noted as follows:-'And Upon Hearing Counsel for the 3rd and 4th Defendants and counsel for the intended interested party and in absence of counsel for the Plaintiff;'

10. A reading of the above statement clearly shows that the orders were not issued ex-parte. The parties were served with the Application, and which service the Plaintiff does not dispute, but it is not clear why the Plaintiff did not oppose the same either orally or by a Replying Affidavit. In the circumstances, I find that this is not an Application for setting aside ex-parte orders but an Application for review as submitted by the Respondents.

11. Section 80 of the Civil Procedure Act donates to courts the power to review their own decisions. It stipulates as follows:'80. 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 Judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.'

12. Order 45 Rule 1 of theCivil Procedure Rules, 2010 provides for the grounds upon which a review may be granted 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.'

13. From the foregoing provisions, it is clear that a review may be granted by the court if there is a discovery of new and important matter or evidence; if there is a mistake or error apparent on the face of the record; or for any other sufficient reason, provided that the application is made without unreasonable delay.

14. What constitutes an error apparent on the face of the record was discussed in the case of Kanyabwera –vs- Tumwebaze [2005] 2 EA 86, where the court stated that:'In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e an evident error which does not require any extraneous matter to show its correctness. It must be an error so manifest and clear, that no court would permit such an error to remain on the record. The 'error' may be one of fact, but it is not limited to matters of fact and includes errors of law.'

15. Similarly, in the case ofNyamogo and Nyamogo –vs- Kogo [2001] EA 17, the Court of Appeal stated that:'an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.'

16. In the instant case, the Applicant claims that the Petition No 1488 of 2016; Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe, Afrison Export Import Limited, Huelands Limited & Others is with regard to compensation paid to the 1st and 2nd Defendants therein for acquisition by the Government of their property Land Reference No 7879/25 which is a different property from the property in this suit and that the causes of action are also fundamentally different. Further that Civil Appeal No 86 of 2017; Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe Afrison Export Import Limited, Huelands Limited & Others is also not related to the issues in this matter. It is contended that had the 5th Defendant fully disclosed the same to the court at the hearing of the application, it would not have granted the orders of March 12, 2021. Further that the Plaintiff's counsel was not present in court on the said March 12, 2021 and the Plaintiff was therefore not afforded an opportunity to be heard on the said application culminating in the grant of the said impugned orders.

17. In view of the above assertions, they do not constitute an error apparent on the face of the record since one has to dig into the pleadings leading to the impugned orders, analyze them afresh and find an opinion that could be different or similar to what was ordered. Secondly, the assertions herein cannot be said to be new evidence that was not in the knowledge of the Plaintiff who intentionally chose not to participate in the 5th

Respondent’s Application in order to shed more light to the court. 18. Having found that the assertions do not constitute an error apparent on the face of the record or new evidence which was not in the knowledge of the Plaintiff, the question Is there any other sufficient reason? My answer is NO The Applicant further claims that the 5th Respondent did not disclose to the court the existence of Petition No 1488 of 2016; Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe, Afrison Export Import Limited, Huelands Limited & Others and Civil Appeal No 86 of 2017; Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe Afrison Export Import Limited, Huelands Limited & Others and which disclosure would have stopped the court from making the orders it made.

19. I have perused the 5th Respondent’s Application dated February 24, 2021 and I note at paragraph (c) on grounds in support of the Application and paragraph 4 of the Supporting Affidavit that the 5th Respondent did bring to the attention of the court the existence of the suits above. I equally note that the property in question in the instant suit is LR No 7879/21 which was part of the larger LR No7879/4 which is the suit property in the 5th Respondent’s suits. It is therefore clear that the said properties are intertwined and therefore there is no other sufficient reason for review.

20. From the aforesaid analysis, I find that the grounds set forth in support of the application herein do not meet the threshold for review as set out under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. They are grounds that would instead qualify for an appeal.

21. Having found as such, it would be an academic exercise to go into the second issue.

22. The upshot of the foregoing is that the Application dated January 18, 2022 is without merit. The same is dismissed with costs to the Respondents.

It is so ordered.RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF DECEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Kariithi counsel for PlaintiffMr. Bett counsel for 1st and 2nd DefendantsMr. Murie counsel for 3rd and 4th RespondentCourt Assistant - Sakina