https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1908

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. 180 OF 2015** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **KENYA WINE AGENCIES LIMITED..………………………CLAIMANT** **VS** **YOBESH AMORO......................................................RESPONDENT** **RULING** 1. The Respondent/ Applicant filed a Notice of Motion application dated 26th May 2025 seeking orders: - 2. *Spent* 3. *THAT the Judgment herein be set aside and be reviewed and an order directing the Claimant to release motor vehicle registration number KAP 292W to the Respondent.* 4. *THAT the Claimant be directed to release the title documents for LR Number 209/14010 belonging to the Respondent and which is being held by the Claimant.* 5. *THAT the Claimant be ordered to rectify the land register of Title LR Number 209/14010 at its cost prior to releasing the same to the Respondent.* 6. *The costs of this application be borne by the said Claimant/Respondent* **Claimant/Applicant’s Case** 1. The Applicant avers that judgment was entered against him in this matter on 20th September 2022, whereby this Court entered judgment for the Claimant against the Respondent for the sum of Kshs 3,661,857.74. 2. It is the Applicant's case that the Court failed to take into account that the Claimant had repossessed and is currently holding motor vehicle registration number KAP 292W, yet he has been directed by the judgment to pay for the loan used to acquire the same. He contends that this amounts to unjust enrichment of the Claimant, as he has been ordered to pay for the said motor vehicle while the Claimant retains possession of it. 3. The Applicant further avers that the Claimant is illegally holding his title number LR 209/14010, which was referred to in the proceedings and the judgment. Consequently, he has been unable to utilize the said land and that the land register has since been interfered with. 4. He avers that the Claimant ought to be directed to rectify the said title at its own cost and release the same to him. He asserts that he requires title reference number LR 209/14010 so as to use it to obtain funds to settle the decretal sum. 5. The Applicant states that this application is urgent as the Claimant has already served him with a Notice to Show Cause and is actively pursuing execution against him. He urges that it would be in the interest of justice and fairness that the orders sought be granted. **Claimant/Respondent’s Case** 1. In opposition to the application, the Respondent filed a Notice of Preliminary Objection dated 11th June 2025 on the following grounds: 2. *THAT the Notice of Motion herein is incurably defective, bad in law and an outright abuse of the process of this Court;* 3. *THAT this Honourable Court does not have jurisdiction to hear and determine this Notice of Motion under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 given that the judgment sought to be reviewed is the subject of an appeal COACA No E048 of 2023 Yobesh Amoro v Kenya Wine Agencies Ltd at the Court of Appeal in Nairobi filed by the Respondent herein;* 4. *THAT this Court does not have jurisdiction to hear and determine this otherwise incurably defective Notice of Motion under the provisions of the law the premise of the application which purports to invoke the jurisdiction of this Court;* 5. *THAT the Notice of Motion herein is premised on non-applicable provisions of the law as regards review of the judgment of this Court as sought and this Court’s jurisdiction is improperly invoked; and* 6. *THAT it is meet and in furtherance of the overriding objectives of Article 159(2) of the Constitution and the Rules made thereunder for the timely disposal of proceedings that this Court peremptorily strike out the Notice of Motion herein as an abuse of the process of the Court with costs to the Claimant.* 7. The Respondent further replying affidavit dated 11th June 2025 and sworn by Doris M. Thangei, its Director Company Secretary and Legal Services. 8. The Respondent avers that this Court does not have jurisdiction to hear and determine the Notice of Motion under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, given that the judgment sought to be reviewed is the subject of an appeal in COACA No. E048 of 2023. It further avers that the jurisdiction of this Court is improperly invoked and that the application is otherwise incurably defective ex facie, and ought to be struck out and/or dismissed in *limine* with costs. 9. As a preliminary issue, the Respondent contends that the order staying execution of the judgment and decree of this Court was granted in excess of jurisdiction, as the Applicant's application of 26th May 2025 did not seek any such order, and the said order ought to be set aside *suo moto*. 10. The Respondent avers that on 27th October 2022, the parties entered into a conditional stay of execution compromising the Applicant's Notice of Motion dated 19th October 2022, on condition that the Applicant deposit the entire judgment sum into a joint interest-earning account in the joint names of advocates on record within 45 days, failing which the stay was to lapse automatically without further recourse to Court. However, the Applicant did not comply with that condition to date, resulting in the automatic lapse of the consent stay. 11. The Respondent contends that in the absence of a specific prayer for stay of execution in the current application and in view of the foregoing non-compliance, this Court acted in excess of its jurisdiction in purporting to grant a blanket timeless stay of execution without affording the Claimant an opportunity to be heard. 12. On the merits, the Respondent asserts that the application is devoid of merit, having failed to meet the statutory threshold for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. 13. It avers that an order for review can only be granted upon discovery of 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 at the time the decree was passed; on account of some mistake or error apparent on the face of the record; where the judgment requires clarification; or for any other sufficient reason. The Respondent contends that the present application is not premised on any of the prescribed grounds and that the Applicant demonstrated none of them. 14. Regarding motor vehicle KAP 292W, the Respondent states that the issue was part of the Applicant's defence, which the Court considered and determined at paragraphs 40, 43 and 44 of the judgment, concluding that the claim for the said motor vehicle was subsumed within the Claimant's claim of Kshs. 3,163,000.00. 15. The Respondent contends that if the Applicant is dissatisfied with that determination, the proper avenue is an appeal and not a review, which appeal the Applicant has since filed, with the motor vehicle issue constituting ground 2 of the Memorandum of Appeal. 16. It is the Respondent's case that it is untenable and impermissible in law for the Applicant to simultaneously maintain an appeal and an application for review over the same ground, and this Court is thereby divested of jurisdiction to review its judgment on that basis. 17. As regards title LR No. 209/14010, the Respondent avers that the said property was not raised in the pleadings but only emerged in the Applicant's oral testimony, and that parties are bound by their pleadings such that evidence at variance with the pleadings goes to no issue and was rightly disregarded by the Court. 18. The Respondent further contends that this ground does not fall within the statutory grounds for review under Rule 33, and notes that it constitutes ground 3 of the Memorandum of Appeal pending before the Court of Appeal, and cannot simultaneously found an application for review. 19. The Respondent states that this suit was instituted by way of Plaint dated 5th June 2006 and filed on 13th June 2006, and has been pending in Court for over sixteen years. It urges that the Claimant ought to be allowed to enjoy the fruits of the judgment unhampered, and contends that the present application is a dilatory tactic intended to frustrate the Claimant's enjoyment of the same. 20. The Respondent further asserts that the application has not been timeously made, the judgment having been delivered on 20th September 2022 while the application was only filed on 26th May 2025, nearly three years later. **Respondent/Applicant’s Submissions** 1. The Applicant submitted on four issues: whether the Respondent has met the threshold for review and/or setting aside of the Judgment; whether the Claimant’s conduct amounts to unjust enrichment; whether the Respondent is entitled to release of Title LR No. 209/14010; and who should bear the costs of this application. 2. On the first issue, it was submitted that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provide the grounds upon which a court may review its decrees or orders, namely upon discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time the decree was passed; on account of some mistake or error apparent on the face of the record; or for any other sufficient reason. 3. Relying on [***National Bank Of Kenya Limited Vs Ndungu Njau[1997]eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/389/eng%401997-05-27) , the Applicant submitted that a review is not an appeal in disguise but is available where the Court has overlooked a material fact or where there is a manifest error on the face of the record, which error must be self-evident and should not require elaborate argument to establish. He argued that the failure to account for the repossession of motor vehicle KAP 292W is a glaring omission that directly affects the substance of the judgment. 4. On the Preliminary Objection, the Applicant submitted that a review is only precluded where an appeal is in fact subsisting, and that the appeal relied upon by the Claimant was formally withdrawn by Notice dated 15th April 2026 and thus no longer exists in the eyes of the law. Further, through a further affidavit dated 15th April 2026, he asserts that he never instructed any advocates to pursue the said appeal and that the appeal and any proceedings thereon are unknown to him. 5. Citing [***Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2001/376/eng%402001-03-02), the Applicant submitted that once proceedings are withdrawn they are rendered a nullity and are deemed never to have existed, and consequently there is no legal bar to the present review proceedings. Further, in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, a Preliminary Objection must be founded on a pure point of law argued on the assumption that all facts are not in dispute, and that the instant objection is predicated on contested factual assertions regarding the existence of an appeal, thereby falling outside the ambit of a proper Preliminary Objection and rendering it incompetent, misconceived, and liable to be dismissed with costs. 6. He further relied on ***Shah v Mbogo [1967] EA 116***, where the Court held that judicial discretion to set aside orders is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, submitting that the Respondent is clearly subjected to hardship by being required to pay for an asset already repossessed. 7. The Applicant submitted that the Court failed to consider material and fundamental facts going to the root of the dispute, namely the repossession of motor vehicle registration number KAP 292W by the Claimant and the continued detention of title LR No. 209/14010. He argued that these were not peripheral issues but central factors directly affecting the rights, obligations, and liabilities of the parties, and that had the Court properly addressed them, it would have appreciated that the Respondent had already been deprived of the benefit and use of the motor vehicle, and that requiring full repayment without proper accounting for the repossessed asset would inevitably result in an inaccurate and inflated assessment of liability. 8. It was further submitted that the Court failed to consider material inconsistencies in the Claimant's evidence regarding the loan of Kshs. 900,000 used to acquire motor vehicle KAP 292W. The Applicant argued that the assertion that the said motor vehicle was repossessed and sold for Kshs. 150,000 within approximately three months of purchase is inherently implausible, suggesting a depreciation of Kshs. 750,000 within an unreasonably short period without any supporting valuation report, repossession records, or sale documentation. 9. The Applicant further submitted that the alleged proceeds of Kshs. 150,000 were not credited or reflected in the statements of account produced before the Court, directly distorting the outstanding loan balance and rendering the computation relied upon by the Court unreliable. He maintained that the record reflects a material misidentification of the subject motor vehicle, with the Court referring to it as KAP XXX and KAP 029Z rather than KAP 292W, demonstrating a clear confusion and factual error going to the root of the judgment. 10. On title LR No. 209/14010, the Applicant submitted that the Court did not consider the practical and legal implications surrounding the said title, which was taken by the Claimant and subsequently handed over to the Ethics and Anti-Corruption Commission (EACC), which has declined to release it to the Respondent, indicating it can only return the same to the Claimant. He argued that despite his efforts to have the Claimant retrieve and return the title, the Claimant has failed and/or refused to do so, effectively depriving him of the ability to sell, charge, or otherwise deal with the property and impairing his capacity to raise funds to settle the decretal sum. 11. He further submitted that the records of the title at the lands office have been interfered with, creating a potential loss of the whole property, and that this constitutes a manifestly unjust situation where the Respondent is required to satisfy a financial obligation while being denied access to the very asset that would enable compliance. 12. On the second issue, the Applicant submitted that the Claimant's repossession of motor vehicle KAP 292W while continuing to enforce full repayment of the loan places the Claimant in a position of double benefit, retaining the security while recovering the entire decretal sum. 13. The Applicant submitted that submitted that the Claimant's conduct is inequitable, unlawful, and amounts to unjust enrichment at the expense of the Respondent. Reliance was placed on [***Mbuthia v Jimba Credit Finance Corporation & Another [1988] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1988/116/eng%401988-07-12), where the Court held that a lender exercising remedies over security must act in good faith and is accountable for the security. He 14. On entitlement to the title, the Applicant submitted that he is the lawful proprietor of LR No. 209/14010 and is entitled to possession of the title document. He submitted that under Section 26 of the Land Registration Act, a certificate of title is prima facie evidence of ownership, and that the continued withholding of the title interferes with his proprietary rights, prevents him from utilizing the land, and exposes the property to potential interference. He cited [***Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/816/eng%402015-01-30), wherein the Court of Appeal affirmed that courts will intervene where property rights are unlawfully interfered with. 15. It was further submitted that under Section 80 of the Land Registration Act, this Court has power to order rectification of the register where necessary, which he argued is directly relevant given the interference with the records at the lands registry. He argued that the continued withholding of the title has had a direct and prejudicial financial consequence, preventing him from disposing of the property to raise funds to settle the decretal sum, and that the Claimant's failure to facilitate its release amounts to an obstruction that defeats the purpose of the judgment and perpetuates an inequitable outcome. 16. On costs, the Applicant submitted that under Section 27 of the Civil Procedure Act, costs follow the event, and having been compelled to file this application due to the Claimant's conduct and the resulting unjust judgment, the Claimant ought to bear the costs. **Claimant/Respondent’s Submissions** 1. It is the Respondent's submission that the application is premised on provisions that do not confer jurisdiction upon this Court to review its judgment. 2. The Respondent submitted that whereas the Applicant seeks an order for review, the application is brought under sections 12 and 13 of the Employment and Labour Relations Court Act, section 3A of the Civil Procedure Act, and Order 4 of the Civil Procedure Rules, none of which grant this Court power to review its judgment. It cited the Supreme Court in [***Daniel Kimani Njihia v Francis Mwangi Kimani & another [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/19/eng%402015-05-27)*: ““ .. Itis trite law that a Court of law has to be moved under the correct provisions of the law. Hence, without thus identifying the proper legal framework for the motion, an application is liable to be struck out......... The\_litigant should invoke the correct constitutional or statutory provision; and an omission in this regard is not a mere procedural technicality, to be cured under Article 159 of the Constitution”* 3. The Respondent further submitted that Article 159 of the Constitution cannot be invoked as a panacea to this incurable defect, as held in [***Michael Mungai v Housing Finance Co. (K) Ltd & 5 other [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/47/eng%402017-01-26)***.*** 4. The Respondent further submitted that the Applicant's purported reliance on section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules cannot salvage the fatal defectiveness of the application, for two reasons: first, that those provisions do not apply in relation to this Court; and second, that the application remains unanchored on any provision conferring jurisdiction upon this Court to grant the orders sought. 5. On the question of the concurrent appeal, the Respondent submitted that the Applicant cannot maintain both an appeal and an application for review over the same judgment. The Applicant filed an appeal against the whole of the judgment of this Court in *COACA No. E048 of 2023,* *Yobesh Amoro v Kenya Wine Agencies Ltd*, at the Court of Appeal in Nairobi, and the very same issues the subject of the instant application for review are those raised in the said appeal. 6. The Respondent relied on Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which provides that a review is only permissible where an appeal is allowed but no appeal has been preferred, or where no appeal is allowed, submitting that a party cannot maintain both an appeal and a review at the same time. 7. Relying further on [***Nguruman Limited v Jan Bonde Nielsen & 2 others [2013] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/347/eng%402013-04-12), the Respondent submitted that the Court of Appeal, in interpreting Order 45 of the Civil Procedure Rules, held that "*a plain reading of Order 45 leaves no doubt that an application for review and an appeal are intended to be alternative remedies,"* and urged that the Applicant cannot sustain both concurrently. 8. On the Applicant's assertion that the appeal was filed without his instructions and has since been withdrawn, the Respondent submitted that this assertion is self-defeating for several reasons. 9. It was submitted that there is no order by the Court of Appeal endorsing the purported Notice of Withdrawal, and until such an order is made, the appeal remains alive. 10. The Respondent further submitted that the purported Notice of Withdrawal is dated 15th April 2026, the same day the further affidavit in support of the instant application was sworn, and that the application for review and the preliminary objection predate the said notice, such that the attempted withdrawal is an afterthought intended to defeat the preliminary objection. 11. It was further argued that nowhere in the application to cease acting did the Applicant's former advocates plead that they filed the appeal without instructions. Further, the Applicant, through the same former firm of advocates, obtained and enjoyed a stay of execution pending hearing and determination of the appeal without raising any objection to its filing, rendering his current assertions hollow and incompatible with his own prior conduct. 12. On delay, the Respondent submitted that there has been inordinate delay in filing the instant application, the judgment having been delivered on 20th September 2022 while the application was filed on 26th May 2025, nearly three years later, with no explanation tendered for the said delay. 13. Citing[***Earnest Ngirichi Mugaa Vs Anna Kariuki [2003] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2003/210/eng%402003-12-05), where the Court declined to grant an application for review on account of inordinate and unexplained delay, the Respondent submitted that the instant application is a mere afterthought intended to forestall the execution process then underway, made in bad faith and with no scintilla of merit. 14. On the merits, the Respondent submitted that the Applicant failed to disclose, both on the face of the application and in the supporting affidavit, the ground or grounds upon which review is sought, and that this omission is fatal. Reliance was placed on [***National Bank Of Kenya Limited Vs Ndungu Njau[1997]eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/389/eng%401997-05-27), where the Court of Appeal held that *"on an application for review, it is particularly necessary that the application should disclose in the body of the notice of motion the ground or grounds on which the review is being sought… this in our view was a fatal omission,"* the Respondent urged this Court to similarly strike out the application with costs. 15. Regarding motor vehicle KAP 292W, the Respondent submitted that the alleged failure by the Court to take into account the repossession of the motor vehicle is not a ground for review but rather an appeal, and if anything, the Court did consider that fact, with the sum of Kshs. 150,000 recovered from the sale of the repossessed vehicle having been taken into account. This ground is simply an appeal in disguise. Reliance was placed on ***National Bank of Kenya Limited v Ndungu Njau [supra]***: “*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.”* 16. On title LR No. 209/14010, the Respondent submitted that this was never an issue in the pleadings before this Court and cannot constitute a ground for review as it has no nexus to the judgment. 17. It was further submitted that the title deed is not in the Claimant's possession but was collected by the Ethics and Anti-Corruption Commission in the course of its investigations on the Applicant. 18. The Respondent submitted that if the Applicant feels the title is erroneously held by any party, the right forum is not this Court, and that the order sought for rectification of the register is a matter reserved exclusively for the Environment and Land Court by virtue of Article 162(2)(b) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2011, this Court having no jurisdiction to entertain such an order. 19. The Respondent submitted that a review is by no means an appeal in disguise, and that it lies only for patent error where, without elaborate argument, one could point to the error and say there is a substantial point of law which stares one in the face, about which there could reasonably be no two opinions. It was argued that this is not the situation in the instant case. 20. The Respondent further submitted that the Applicant has introduced new grounds and issues not pleaded before this Court and having no bearing on the judgment, in an attempt to invite this Court to sit on its own appeal, which is impermissible in law, once again relying on **National Bank of Kenya Limited v Ndungu Njau [supra]**, where the Court of Appeal held: *"the learned Judge would be sitting in appeal on his own judgment which is not permissible in law."* 21. It is the Respondent’s submission that there is no error apparent on the face of the record capable of invoking the limited discretionary jurisdiction of this Court, no new evidence discovered by the Applicant which was not within his possession or knowledge before the judgment was rendered, and no other sufficient reason for review. 22. I have examined all the averments and submissions of the parties herein. The applicant has sought an application for review over a judgment delivered on 20th September2022. It is also submitted that there is an appeal pending before the court over the same. 23. Apart from the applicant coming before this court late and also having filed an appeal over the same issues, the application is an abuse of the court process and cannot therefore be entertained or stand. I therefore find the application not merited. The same is dismissed accordingly. There shall be no order of costs. **Dated, Signed and Delivered virtually at Nairobi this 6th Day of July 2026.** **HELLEN WASILWA** **JUDGE**