[2023] KEHC 25464 (KLR)

Kericho Muslim Association (Suing Through its Secretary Mohammed Abdullahi Unshur) v Supreme Council of Kenya Muslims & another; Aziz & 24 others (Interested Party); Muhammed (Intended Interested Party) (Civil Appeal 257 of 2016) [2023] KEHC 25464 (KLR) (Civ) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25464 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 257 of 2016

JN Mulwa, J

November 16, 2023

Between

Kericho Muslim Association (Suing Through its Secretary Mohammed Abdullahi Unshur)

Plaintiff

and

Supreme Council of Kenya Muslims

1st Defendant

The Registrar of Societies

2nd Defendant

and

Abdulqadir Abdul Aziz & 24 others

Interested Party

and

Abdul Kader Muhammed

Intended Interested Party

Ruling

1. Before the Court is the Intended Interested Party’s Notice of Motion dated 8th November, 2022 brought pursuant to Section 80 and 3A of the Civil Procedure Act, Order 45 Rules 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking leave to be enjoined in these proceedings, and review of the Orders of this court made on 4th October 2022, as well as costs of the application.

2. The Application is predicated on the grounds set out on its face and Supporting Affidavit in which he averred that he is the current Chairman of the Plaintiff; that on 4th November 2022, he received a WhatsApp message informing him that a consent order had been recorded in this case, and two letters in which he was accused of failing to follow the court's orders.

3. He averred that he requires to be involved in the case for two reasons: first, that the consent orders were addressed to him as the Chairman of the Plaintiff, and second, he has knowledge that could assist the court in reaching an informed determination.

4. The application was opposed through a Replying Affidavit Sworn by Abdulqadir Abdulaziz, the Interested Party. He averred that the Applicant, who was not a party to these proceedings, cannot request joinder after the case has already been resolved, and in any event, an order is being sought for the reinstatement of the suit, thus the orders being sought are just an academic exercise.

5. The Application was canvassed by way of written submissions. However, only the Applicant and the 1st Defendant and the 25 Interested parties put in their submissions.

6. The Applicant submitted that despite the fact that the parties' consent order purports to compel him to perform official duties, he was not given the opportunity to address the court about it. As a result, he is now subject to contempt of court actions, and the orders will interfere with his capacity as the Chairman of the Plaintiff, which could cause him harm.

7. The Applicant further submitted that the only logical explanation for the irregular way the consent was recorded is that the Advocates for the Plaintiff and the Defendants colluded, which led to the consent order being recorded without the involvement and instruction of the Plaintiff.

8. The 1st Defendant/Respondent submitted that it is common practice that a non-party in a suit cannot seek any relief in a suit before being made a party, and none of the parties to this matter had requested that the Applicant be added as a party to the claim.

9. It is the Respondent’s submissions that the Applicant’s prayers are not anchored in any suit and therefore cannot be granted. The Respondent relied on the case of Yang Guang Property Design & Manufacturing Ltd v China Wu Yi Co.(K) Ltd (2021) eKLR were Counsel for the Defendant in the case had proposed only one issue for determination namely, “whether the application is misconceived and incurably defective on the basis that the prayers sought thereby are not anchored in the main suit.” In the courts view, that is also the issue for determination herein.

10. 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 judgment to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

11. Order 45 Rule 1 of the Civil Procedure Rules 2010 provides for the grounds upon which 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.”

12. 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; 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.

13. In this instance, it is obvious that none of the aforementioned issues have arisen because the matter was initially resolved by a consent decree dated 4th November, 2022, in when the Applicant was not a party to the proceedings in person, but was the chairman of the Plaintiff Association. By the consent orders dated 4th October 2022, the case was resolved, and this consent order has not been set aside, nor is it in dispute. Therefore, as the case has been resolved, there is no suit before this court for the Applicant to be enjoined into.

14. Based on the evidence in the record, it is clear that the matter has been resolved, and none of the parties to the suit have requested that it be reopened or that the applicant be enjoined.

15. The court notes that the Applicant had sought orders for stay of execution as well as review of orders made on 4th October 2022 which were not anchored in any suit and therefore cannot be granted. In Samuel Chege Thiari & another v Eddah Wanjiru Wangari & 3 others [2018] eKLR, the Court held as follows: -“In the end, I find that the Applicant is not properly before this court as there is no suit upon which the Notice of Motion can stand. The court cannot invoke its inherent jurisdiction to cure that defect.

16. For the foregoing, the Application dated 8/11/2022 is dismissed with costs to the 1st Defendant and the Interested parties.Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 16TH DAY OF NOVEMBER, 2023. JANET MULWAJUDGE