https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4002

Wayaffe v Toner Holdings Limited & 2 others (Environment and Land Case E112 of 2022) [2026] KEELC 4002 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4002 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E112 of 2022 CG Mbogo, J July 1, 2026 Between Alexandre Wayaffe Decree holder and Toner Holdings Limited Judgment debtor and Corrine Marie Madeleine Genevieve Defendant and Joseph Schwartzman Applicant Ruling 1.Before this court for determination is the notice of motion dated 14th April, 2026 filed by the applicant and it is expressed to be brought under Section 80 of the Civil Procedure Act and Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules seeking the following orders:-1.Spent.2.That this honourable court be pleased to stay the decision of Hon. Justice C. G. Mbogo requiring the oral examination of the applicant pending inter-partes hearing and determination of this application.3.That this honourable court be pleased to review, vary and or set aside the ruling delivered by Hon. Justice C.G Mbogo on the 5th of March, 2026.4.That costs be in the cause. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the applicant sworn on even date. The applicant deposed that the decree holder filed the application dated 24th January, 2025 seeking to have this court compel the directors of the judgement debtor to attend court and be orally examined on oath as to its means and assets, which application came up for ruling on 5th March, 2026. 3.It was deposed that in the ruling delivered on 05th March, 2026 the court stated that according to the records held by the company's registry as at 20th May, 2024 which record was annexed to the replying affidavit of Thomas Masaki, the applicant whose nationality is Kenyan is listed as a director/shareholder of the judgment debtor and that there were no recent records of the judgment debtor indicating otherwise. The applicant deposed that the court referred to the CR-12 dated 20th May, 2024 which relates to Muthaiga Heights Management PLC in which he is a director and not Toner Holdings Limited, the judgment-debtor herein. He deposed that he is only a third party to the dealings, transactions and/or contract between the decree holder and the judgment debtor which gave rise to the present proceedings and the resultant decree. 4.The applicant further deposed that he is not privy to the financial status and standing of the defendant/judgement debtor, hence his attendance in court to answer to the summons shall be of no legal benefit to this court and or parties to the suit and no useful purpose shall be served by his name remaining thereon. 5.The decree holder opposed the application vide his replying affidavit sworn on 20th April, 2026. He deposed that neither the court nor himself pronounced the applicant as a director of the judgment debtor. The applicant himself unilaterally, voluntarily and without any form of compulsion informed the court repeatedly that he was a director of the judgment debtor in his pleadings particularly the witness statement dated 5th October, 2022 and the replying affidavit sworn on 16th September, 2022. Further, that during the defence hearing, the judgment debtor called one witness who was the applicant. For this reason, the decree holder deposed that the application is marked with dishonesty, inaccuracy and clear intention to mislead the court with the objective being to delay the intended examination. 6.The application was canvassed through written submissions. The applicant filed written submissions dated 5th May, 2026. The decree holder filed written submissions dated 6th May, 2026. I have considered the application, the replies thereof and the written submissions. The issue for determination is whether the application has merit. 7.The applicant seeks a review of the court’s ruling delivered on the 5th of March, 2026 requiring him to be orally examined on the judgment-debtor’s financial means and assets for purposes of satisfaction of the decree. He denies being a director of the judgment debtor. 8.Section 80 of the Civil Procedure Act provides:-“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.” 9.Order 45 rule 1 of the Civil Procedure Rules provides that:“(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 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.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 10.The requirements necessary for orders of review to be granted have been widely elaborated by the courts. In the case cited by the Respondent, Francis Njoroge v Stephen Maina Kamore [2018] eKLR the court held that:-“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist:-a.There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; orb.There was a mistake or error apparent on the face of the record; orc.There were other sufficient reasons; andd.The application must have been made without undue delay.” 11.The grounds relied on by the applicant in this case are that there was an error in the ruling delivered on 5th March, 2026 since he is not a director of the judgment-debtor as stated by the court, thus he is not privy to its financial status, and hence his attendance in court in answer to the summons shall be of no legal benefit to this court and or parties to the suit. The applicant annexed a copy of the CR-12 form for Muthaiga Heights Management PLC dated 20th May, 2024 indicating that he is one of the directors thereof. He also annexed another CR-12 belonging to the judgment-debtor dated 8th October, 2024 showing that he is not one of the listed directors. 12.This elicits the question, did the applicant lie to the court during the defence hearing? If he did, what are the appropriate steps to be taken? To answer this question, the applicant must appear before the court and answer the same. It must be noted that under Section 108 of the Penal Code, it is an offence if:-“(1)(a) Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed perjury.” 13.While this is not a criminal court, the court can refer the applicant to the relevant authorities if it so realizes that he deliberately gave false testimony. Meanwhile, and as far as the proceedings are concerned, the record bears witness that the applicant presented himself as a director of the judgment debtor and he must avail himself for examination as previously ordered by the court. From the above, the notice of motion dated 14th April, 2026 lacks merit, and it is hereby dismissed with costs to the decree holder.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 1ST DAY OF JULY, 2026.HON. MBOGO C.G.JUDGE01/07/2026.In the presence of:Ms. Benson Agunga - Court assistantMr. Hans Oichoe for the Plaintiff/Decree HolderMr. Mida for the 1st Defendant/Judgement Debtor