[2022] KEELC 390 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO. 437 0F 2018

HOMBOYZ ENTERTAINMENT LIMITED.............................................PLAINTIFF/APPLICANT

VERSUS

SECRETARY NATIONAL BUILDING INSPECTORAT...........1STDEFENDANT/RESPONDENT

KENYA AIRPORTS AUTHORITY.............................................2NDDEFENDANT/RESPONDENT

ATTORNEY GENERAL...............................................................3RD DEFENDANT/RESPONDENT

RULING

INTRODUCTION

1. Vide Notice of Motion dated 16th December 2021, the Applicant approached the Court seeking the following Orders:

(i) ………………………………………………………………………………Spent.

(ii) The Hounorable Court be pleased to Set aside and/or Review its orders issued on 16th December 2021, Dismissing the Plaintiffs Suit for want of Prosecution and that the Plaintiff case be reinstated.

(iii) Costs of the Application be provided for.

2. The Subject Application is premised on the grounds contained on the face thereof, and same is further Supported by the Affidavit of Billy Tuitoek Kipruto, Sworn on the 16th December 2021, and to which the deponent has attached two annextures.

3. Upon being served with the subject Application, the Defendants proceeded to and filed Grounds of opposition, in respect of which same opposed the subject Application. For clarity, the Defendants contended that the subject Application was not only misconceived, but same was also bad in law.

BACKGROUND:

4. The subject matter was fixed and/or scheduled for hearing on the 16th December 2021, and when the matter was called out for hearing, counsel for the plaintiff herein applied for adjournment on the basis that his client, namely the Plaintiff was indisposed.

5. In this regard, counsel therefore sought indulgence of the court, to take out the matter from the Cause List and to Adjourn the same. For clarity, Counsel sought that the matter be adjourned and a new Date be granted.

6. Premised on the reason advanced that the Plaintiff was indisposed, the court enquired from counsel the nature of indisposition that could inflict and/or bedevil the Plaintiff, taking into account that the Plaintiff is Body corporate, namely, a Limited liability Company, as opposed to a Natural Human being.

7. Faced with the question, counsel for the Plaintiff became perplexed and had no response. However, counsel shortly changed tune and thereafter contended that it was the Plaintiff’s witness and/or Director who was taken ill and could therefore not attend court.

8. Nevertheless, when counsel was asked about any medical evidence to show and/or prove that the Plaintiff’s witness and/or director was indeed taken ill, counsel similarly did not have any evidence to avail and/or show to the court.

9. Be that as it may, counsel reiterated his application for adjournment and even stated that same was amenable to have the adjournment marked as a Last one on the part of the Plaintiff.

10. On the issue that this suit had hitherto been Dismissed for want of prosecution and was merely reinstated by the court, so as to afford the Plaintiff a latitude to be heard, counsel stated that same had no knowledge of the antecedent position.

11. On his part, counsel for the 1st & 3rd Defendants/ Respondent opposed the Application for adjournment and contended that the Plaintiff had not placed before the court, any credible and/or reasonable explanation to warrant any adjournment.

12. As concerns the issue of sickness and/or indisposition, counsel for the 1st & 3rd Defendants submitted that the Plaintiff is a Limited liability company and therefore same cannot fall sick, either in the manner alluded to by Counsel or at all.

13. In respect of the latter submissions that it was the Plaintiff’s witness that have fallen sick, counsel for the 1st & 3rd Defendants submitted that no Medical document was availed and/or placed before the court. Consequently, counsel for the 1st & 3rd Defendants, concluded by submitting that the Application for adjournment was not merited.

14. On her part, counsel for the 2nd Defendant, submitted that she was not ready to proceed with the hearing and in this regard the application for adjournment which was made by and or at the instance of the Plaintiff should be favorably considered and allowed.

15. Having listened to the submissions made by counsel for the Parties for and/or against the application for adjournment, the court rendered a ruling whereby same found and held that the application for adjournment was not merited. For clarity, the court took into account the antecedent conduct of the Plaintiff herein including the fact that the Plaintiff’s suit had hitherto been dismissed for want of prosecution on the 21st September 2020.

16. Upon the delivery of the Ruling, whereby the court declined to grant the Application for adjournment, the court invited the Plaintiff herein to indicate whether same would be ready to proceed with the hearing and to enable the court give further directions and time allocation. However, at this juncture, the Plaintiff’s Counsel indicated that same did not have any witness and in any event, same revisited the issue of adjournment.

17. Pursuant to the foregoing, the court was thereafter compelled and/or constrained to ascertain from the 1st & 3rd Defendants, as well as from the 2nd Defendant, if any of them was admitting any portion of the Plaintiff’s claim. In this regard, all the Defendants, responded in the negative.

18. Based on the foregoing, the court was thereafter obliged to proceed and determine the Plaintiff’s case forthwith and in this regard, the Plaintiff’s case was therefore dealt with in line with the Provisions of Order 17 Rule 4 of the Civil Procedure Rules 2010.

19. Suffice it to mention, that upon the disposal of the Plaintiff’s case, the court thereafter invited the 2nd Defendant, who had also filed a Defense and Counter-claim to proceed and prosecute the Defense and counterclaim.

20. However, the 2nd Defendant herein, was similarly not ready with her counterclaim, despite opportunity having been availed and/or offered.

21. Consequently and in the premises, the court was enjoined to and indeed proceeded to and dismissed the counterclaim by and/or on behalf of the 2nd Defendant.

22. It is important to note, that on the scheduled hearing date, namely, the 16th December 2021, only the 1st & 3rd Defendants were ready to proceed with the hearing. Consequently, the court proceeded and awarded the costs of the suit and counterclaim to and in favor of the 1st & 3rd Defendants.

23. It is the said proceedings and the resultant Dismissal of the Plaintiff’s suit for want of Prosecution, which has provoked the subject Application and in respect of which the Plaintiff has now sought that the said orders be set aside and/or reviewed.

SUBMISSIONS;

24. The subject Application came up for hearing on the 2nd March 2022, on which date the said Application was canvased by way of Oral submissions.

25. On behalf of the Plaintiff/ Applicant, it was submitted that at the time when the Application for adjournment was made, the counsel for the Plaintiff was not seized of and/or in possession of the medical evidence to show that the Plaintiff’s witness was truly was indisposed.

26. Nevertheless, after the Application for adjournment was dismissed, counsel for the Plaintiff sought for and procured the evidence of indisposition and same has now been availed and/or supplied to the court. In this regard, counsel for the Plaintiff has now submitted that same has placed before the court sufficient basis to warrant review of the orders of the court that dismissed the suit for want of prosecution.

27. Secondly, counsel for the Plaintiff has further submitted that the court has jurisdiction to set aside and/or review the orders of Dismissal of a suit for want of prosecution, which were made in the presence of the Plaintiff and in line with Order 17 Rule 4 of The Civil Procedure Rules 2010, if sufficient cause or basis is shown and/or placed before the court.

28. Finally, counsel for the Plaintiff has submitted that the court should consider setting aside and/or reviewing the orders dismissing the suit for want of prosecution, to enable it hear and dispose of the suit on merits and thereby render Substantive justice in line with Article 159(2) of the Constitution 2010.

29. On his part, counsel for the 1st & 3rd Defendants raised three pertinent issues. First and foremost, counsel submitted that the affidavit in support of the subject Application is incompetent and thus bad in law, to the extent that same has been sworn, by an Advocate on record, yet same touched on and/or adverts to Contentious Evidentiary issues, which are not within the Personal knowledge of the said Advocate.

30. In this regard, it has been submitted that an Advocate who is on record cannot swear an affidavit on Contentious and/or Evidentiary issues, which would require proof and which proof may culminate into the advocate being invited to step down from his privilege position as advocate and to be cross examined as a witness.

31. Consequently, it was therefore submitted that the affidavit in support of the subject Application should therefore be struck out and/or be expunged from the record and that once same is so struck out, the Application shall remain bare without any Supporting Evidence and same should therefore be similarly incompetent.

32. Secondly, counsel submitted that having dismissed the suit for want of prosecution, in the presence of counsel for the Plaintiff, pursuant to and in line with the provisions of Order 17 Rule 4 of the Civil Procedure rules 2010, the court is not seized of Jurisdiction to set aside or review the said orders for Dismissal. In this regard, counsel submitted that the court is therefore Functus officio.

33. Finally, counsel submitted that the Medical evidence that is now being propagated before the court, was an issue which was alive before the court on the 16th December 2021, and the court duly considered the non-disclosure and/or non-provision of such medical evidence. Consequently, the Plaintiff cannot now procure, manufacture and or generate what is called Medical evidence and pretend that same is New evidence which has now been discovered to warrant Review.

34. Nevertheless, counsel for the 1st & 3rd Defendant drew the courts attention to the import and tenor to the proviso to Order 45 Rule 1 of the Civil Procedure Rules which provides that for any New evidence to suffice, it must be shown that same was not within the possession of the Applicant at the time of the delivery of the judgment and/or ruling and similarly that same could not have been availed despite exercise of due diligence. In short, counsel submitted that the Plaintiff has not met the threshold.

35. On his part, counsel for the 2nd Defendant shared the same sentiments expressed by counsel for the 1st & 3rd Defendants, but added two salient points. For clarity, the additional points were as hereunder:

36. Firstly, that to the extent that the court had exercised his discretion to dismiss the suit for want of prosecution, in the presence of the Plaintiff herein, the resultant decision, was therefore a final decision, which is only capable of being set aside vide Appeal and not otherwise. In this regard, counsel stated that this court is Functus-officio

37. Secondly, counsel for the 2nd Defendant submitted that even though the deponent to the Supporting affidavit is an advocate retained by the Plaintiff, same however cannot usurp the authority of the Plaintiff and thereby become a witness, particularly adverting to Evidentiary issues in contentious matters, which are in controversy.

38. Further, Counsel submitted that the parameters where an advocate can swear an affidavit were delineated and defined in the case of Kisya Investments Ltd & Others vs Kenya Finance CorporationLtd, and therefore the Supporting affidavit is invalid.

ISSUES FOR DETERMINATION:

39. Having reviewed the Notice of Motion Application dated the 16th December 2021, the Supporting Affidavit thereto, the Grounds of Opposition filed and/or on behalf of the Defendants, as well as the Oral submissions that were made by the Parties, the following issues Do arise and are germane for determination;

a. Whether the Supporting Affidavit sworn on the 16th December 2021, by Counsel on record for the Plaintiff and which adverts to contentious Evidentiary issues is Incompetent and invalid.

b. Whether the court has Jurisdiction to set aside of orders of Dismissal of suit for want of Prosecution under Order 17 Rule 4 of the Civil Procedure Rules, 2010, made in the presence of the counsel for the Plaintiff.

c. Whether the Applicant herein has met and/or satisfied the threshold for Review on the basis of discovery of new and important evidence as envisaged vide Order 45 Rule 1 of the Civil Procedure Rules, 2010.

ANALYSIS AND DETERMINATION

ISSUE NUMBER 1

Whether the Supporting Affidavit sworn on the 16th December 2021, by counsel on record for the Plaintiff and which adverts to Contentious Evidentiary issues is Incompetent and Invalid.

40. Before venturing to address the competence or otherwise of the Supporting affidavit sworn by counsel on record for the Plaintiff herein, it is worthy to take note of certain pertinent paragraphs which raises evidentiary issues which are contentious in nature. For clarity, the said paragraphs are 3, 4, 6, 7 & 8 of the Supporting Affidavit.

41. For the avoidance of doubt, it is imperative to reproduce same as hereunder;

Para 3:

That I was informed by the witness Rose Nyaguthie Rabar on the 15th December 2021, that her and her daughter were feeling unwell and that they had developed severe symptoms similar to those of covid-19 necessitating covid-19 test

Para 4:

That when the matter came up for hearing on the 16th December 2021, the court requested for the covid-19 test which at that moment were not in my possession.

Para 6:

That I have since obtained the said test result from the witness (annexed herewith and marked BTKI 1 and BTKI 1 are the test result of Rose Nyaguthie Rabar and Tracie Rabar, respectively).

Para 7:

That while the witness- tests results were negative, her Daughter’s results came back positive and as per the test result since the two had been together and shared same severe symptoms, the testing institution recommended a further test noting that the results may have been due to poor quality specimen or inappropriate timing of specimen collection among other reasons.

Para 8:

That it is quiet apparent that the reason covid-19 test was because the Plaintiff’s witness experienced symptoms of covid-19 and was unwell necessitating the step of carrying out covid-19 test.

42. It is apparent and evident that the issues which the advocate for the Plaintiff has alluded to, touching on whether or not the witness was sick, the nature of the sickness and why the test results were negative, if at all, are issues of evidence, to which the counsel cannot advert to and/or vindicate on his own knowledge.

43. On the other hand, there is also the issue pertaining to the source and/or origin of the annexure, which counsel for the Plaintiff/Applicant has attached to the supporting affidavit. For clarity, the question is where from did counsel procure and/or obtain the annexure before he attached or annexed same to his affidavit.

44. On the other hand, there is also a critical question which touches on the variance and or discrepancy between the name of the witness whom the deponent refers to in paragraph 3 of the supporting affidavit, namely Rose Ny’aguthie Rabar and yet the anexture refers to the Patient as Rose Nyaguthii Maina, who is certainly separate and distinct form the purported witness alluded to by the deponent of the supporting affidavit.

45. Suffice it to say, that all the foregoing issues, are evidentiary matters, which are contentious in nature and which an advocate on record, cannot be able to advert to and/or swear on oath, without courting an invitation to step down from the privileged position of an advocate and to be cross examined as a witness on the contentious aspects of his affidavit.

46. In my humble view, it is time that advocates eschew swearing of affidavits touching on evidentiary matters, which are contentious in nature, even though same have been retained to act for the Parties in such dispute. Suffice it to say, it is appropriate for advocates to demarcate and/or delineate the extent to which same are authorized to swear affidavits in contentious litigation, so as to avoid degenerating into the murky waters of controversy.

47. Perhaps I may add that the warning of Hon Justice Ringera, in the decision in the case of Kisya Investments Ltd & Others vs Kenya Finance CorporationLtd,(2005) Eklr needs to be heeded and adhered to. For clarity, the Honorable judge held as hereunder;

“…….it is not competent for a party’s advocate to depose to evidentiary fact at any stage of the suit”.

48. The foregoing position of the law, has received endorsement and emphasis in subsequent Decisions of the Court including the decision in the case of Regina Waithira Mwangi Gitau vs Boniface Nthenge [2015] eKLR where the Honorable Court observed as hereunder;

“On issue number one, the established principle of law is that advocates should not enter into the arena of the dispute by swearing affidavit on contentious matters of fact. By swearing an affidavit on contentious issues, an advocate thus makes himself a viable witness for cross examination on the case which he is handling merely as an agent which practice is irregular.

49. For coherence, I also added my voice to this jurisprudential position vide the decision in the case of Habiba Ali Mursai & 4 others v Mariam Noor Abdi [2021] eKLR,where I stated as hereunder;

Be that as it may, I must state that the provisions ofRule 9 of the Advocates (Practice) Rulesas well as the various decided case law, dating back to the decision in the case ofSimon Isaac Ngui vs Overseas Courier Services [1998] Eklr,have underscored the fact that it is not acceptable for an Advocate to swear an Affidavit and/or declaration, in respect of contentious evidential facts and/or issues.

50. Based on the foregoing, I come to the inescapable conclusion that the supporting affidavit sworn by counsel for the Plaintiff and which touches on contentious evidential issues and/or matters, is not only incompetent, but is invalid. Consequently, same be and is hereby struck out.

51. On the other hand, it is also worthy to note that the two sets of documents, which have been annexed to the supporting affidavit, have not also been serialized with annexture stamp in line with and in accordance to the provision of Rule 9 of the Oaths and Statutory Declaration Rules. In this regard, the said annextures are similarly invalid.

52. Without belaboring the point, I subscribe to and endorse the observation in the decision in the case of Solomon Omwega Omache & another v Zachary O Ayieko & 2 others [2016] eKLR,where the court held as hereunder;

Rule 9 of the Oaths and Statutory Declarations Rules requires that annextures to affidavits should be sealed and stamped. The rule reads;-

“All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner and shall be marked with serial letters of identification.”

Hon. J. B Havelock J.(as he then was) in the case of Fredrick Mwangi Nyaga –vs- Garam Investments & Another [2013] eKLR had occasion to consider the application of the above Rule 9 of the Oaths and Statutory Declarations Rules. The judge in holding that an exhibit annexed to an affidavit which is not marked is for rejection cited with approval a ruling by Hayanga J. (as he then was) in the case of Abraham Mwangi –vs- S. O Omboo & Others HCCC No. 1511 of 2002 where the judge had held thus:-

“Exhibits to affidavits which are loose fly sheets for identification attached to them and do not bear exhibit marks on them directly must be rejected. The danger is so great. These exhibits are therefore rejected and struck out from the record. That marks the affidavit incomplete and hence also rejected…”.

Although the point was not taken up by the plaintiffs the court has a duty to uphold the sanctity of the record noting that this is a court of record. Before the court is a replying affidavit with annextures which are neither marked nor sealed with commissioner’s stamp. Are they really exhibits? I do not think so and they cannot be properly admitted as part of the record. I expunge the exhibits and ineffect that renders the replying affidavit incomplete and therefore the same is also for rejection as without the annextures it is valueless. This should serve as a wakeup call to practitioners not to be too casual when processing documents for filing as it could be extremely costly to them or their clients as crucial evidence could be excluded owing to counsels or their assistants lack of attention and due diligence.

53. Notwithstanding the incompetence of the supporting affidavit, I also come to the conclusion that even the annextures which were meant to lend credence to the supporting affidavit, are also incompetent and invalid. Same are similarly expunged.

ISSUE NUMBER 2

Whether the court has Jurisdiction to set aside of orders of Dismissal of suit for want of Prosecution under Order 17 Rule 4 of the Civil Procedure Rules made in the presence of the counsel for the Plaintiff or generally in the presence of Parties.

54. On the 16th of December, 2021, Counsel for the Plaintiff applied for an adjournment, on various reasons, details which were captured in the proceedings of the given date.

55. Following the application for adjournment, the Court was enjoined to consider same and thereafter make a decision. For clarity, upon consideration, the Court came to the conclusion that the Application for adjournment was not merited.

56. Subsequently, the Court ordered and/or directed that the matter proceeds for hearing, but however, the Plaintiff was not able to summon her witness to come to Court and to offer evidence, in support of the Plaintiff’s case.

57. Owing to the foregoing, the Court was constrained to deal with the matter forthwith, in accordance with the Law and particularly in line with Order17 Rule 4 of the Civil Procedure rules, 2010, which provide as hereunder:

“Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.”

58. My reading of the foregoing provision of the law, suggest and/or connotes that where a Party has been afforded and/or availed sufficient and/or reasonable opportunity to tender evidence, but same has failed to do so, the court is at liberty to determine the suit forthwith.

59. It is apparent, that by the usage of the Word; by determining the suit, the court is granted the liberty to either enter judgment, where there is a limb of the claim that is admitted by the adverse party or better still dismiss the suit as against the Defendant.

60. Nevertheless, it is imperative to note that even where the suit is dismissed for want of prosecution, such a dismissal constitutes or amounts to a Judgment in favour of the Defendant.

61. Whereas, a dismissal which is done in the absence of the Parties or one of the Parties, is amenable to be set aside pursuant to an application under Order 12 Rule 7 of the Civil Procedure Rules 2010, a Dismissal for want of prosecution, made and/or undertaken in the presence of the Parties leads to an Inter-Partes judgment, in the nature of a Dismissal and same does not lend itself to setting aside.

62. In the circumstances, it is my humble position that having entertained arguments from both the Plaintiffs and the Defendants , on the 16th December 2021, the resultant decision is one that can only be Appealed against and not otherwise.

63. In support of the foregoing observation, it is imperative to take cognizance of the Decision in the case of Njue Ngai v Ephantus Njiru Ngai & Another (2016) eKLR, where the Honourable Court of Appeal observed as hereunder;

“Another issue may arise as to whether a dismissal of a suit for non-attendance of the plaintiff or for want of prosecution, amounts to a judgment in that suit. The predecessor of this Court answered that issue in the affirmative when considering the dismissal of a suit for failure by the plaintiff to attend court in the case ofPeter Ngome vs Plantex Company Limited[1983] eKLR stating:-

Rule 4(1) does not say “judgment shall be entered for the defendant or against the plaintiff”. It uses the word “dismissed”. The Civil Procedure Act does not define the word “judgment”. According to Jowitt’s Dictionary of English Law 2nd ed p 1025:

Judgement is a judicial determination; the decision of a court; the decision or sentence of a court on the main question in a proceeding or/one of the questions, if there are several.”

Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order,” “Judgment – in England, the word judgment is generally used in the same sense as decree in this code”.

In my view, a judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit under Rule 4(1) of Order 1XB or under any other provision of law. A dismissal of a suit, under Rule 4(1) is a judgment for the defendant against the plaintiff.An application under Rule 3 of Order 1XB includes application to set aside a dismissal. This must be so because, when neither party attends court on the day fixed for hearing, after the suit has been called on for hearing outside the court, the court may dismiss the suit, and, in that event, either party may apply under Rule 8 to have the dismissal set aside or the plaintiff may bring a fresh suit subject to any law of limitation of actions: See Rule 7(1) of Order 1XB. This, I think, clearly shows that Rule 7(2) was intended to bar a plaintiff whose suit has been dismissed under Rule 4(1), only from bringing a fresh suit. That provision does not bar such a plaintiff from applying for the dismissal to be set aside under Rule 8”. [Emphasis added]

64. From the foregoing case law, it is apparent that the Dismissal for non-attendance and/or want of prosecution, if done in the absence of the Advocates for Parties or of the Parties, themselves, then an application for setting aside can be entertained and duly dealt with.

65. However, that is not the situation in respect of the subject matter and in this regard, I find and hold that this court is not seized and/or possessed of the Jurisdiction to entertain the subject Application whose import and tenor, is calculated to have the court sit on Appeal in respect of own decision, albeit, disguised as setting aside.

ISSUE NUMBER 3

Whether the Applicant herein has met and/or satisfied the threshold for Review on the basis of Discovery of new and important evidence as envisaged vide Order 45 Rule 1 of the Civil Procedure Rules, 2010.

66. The Plaintiff herein has also sought for the Review on the basis that same has since discovered and procured the Medical evidence, showing that the Plaintiff’s witness, was indisposed and hence the reason for her unavailability to attend court and testify on the 16th December 2021.

67. Even though the Plaintiff has since exhibited a Medical document, whose authenticity was questionable, given the discrepancy between the name of the witness as captured in the affidavit and the purported Medical evidence, it is worthy to note that the Medical evidence alluded to was within the custody and/or possession of the Plaintiff as of the 15th December 2021.

68. Suffice it to note, that the proceedings and the impugned decision, which are the subject of the current Application were taken and/or made on the 16th December 2021. Consequently, it is evident that by the time the impugned decision was being made, the Plaintiff had in her possession the Medical Report and hence same cannot fit within the perspective of new and important evidence which was not in the custody of the Plaintiff, as envisaged under the law.

69. In any event, the issue as to whether the Plaintiff’s witness was indisposed or otherwise and whether evidence was availed or not, were substantially deliberated upon before this court and the court thereafter made a conscious and deliberate decision thereon, culminating into a refusal to grant the adjournment.

70. In this regard, the Court made a Conscious and deliberate finding, which cannot be the subject of a Review. Granted, the court may or may not have been right, but the Error, if any, ( however, the Court is not admitting any Error) is one in the exposition of the law, which can only be corrected vide appeal and not review.

71. In support of the forgoing statement of the law, I can do no better than to quote and adopt the holding in the decision in the case of National Bank Ltd v Ndungu Njau (1997) eKLR, where the Court of Appeal Succinctly observed as hereunder;

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.

In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.

FINAL DISPOSITION:

72. Having reviewed the issues for determination, I come to the conclusion that the Application dated the 16th December 2021, other than being anchored on an incompetent and invalid supporting affidavit, is similarly Devoid of Merits.

73. Consequently the Application herein, namely the Application dated 16th December 2021, be and is hereby Dismissed with costs to the Defendants.

74. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25th DAY OF MARCH 2022.

HON. JUSTICE OGUTTU MBOYA

JUDGE

IN THE PRESENCE OF;

JUNE NAFULA COURT ASSISTANT

MR. KIPRUTO TUITOEK FOR THE PLAINTIFF/APPLICANT

MR. MOTARI H/B FOR MR. ALLAN KAMAU FOR THE 1ST & 3RD DEFENDANTS/RESPONDENT

MISS KIMANI H/B FOR MR. JEREMY NJENGA FOR THE 2ND DEFENDANT/RESPONDENT