[2022] KEHC 16148 (KLR)

Khan & 2 others v Ethics and Anti Corruption Commission & 6 others (Commercial Petition 2 of 2021) [2022] KEHC 16148 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16148 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Petition 2 of 2021

A Mabeya, J

December 9, 2022

Between

Shakeel Ahmed Khan

1st Petitioner

Nazir Ahmed Matabkhan

2nd Petitioner

Tornado Carriers Limited

3rd Petitioner

and

Ethics and Anti Corruption Commission

1st Respondent

Director of Public Prosecutions

2nd Respondent

Directorate of Criminal Investigations

3rd Respondent

All Magistrates and Anti-Corruption Courts

4th Respondent

Kenya National Highways Authority

5th Respondent

National Land Commission

6th Respondent

Attorney General

7th Respondent

Ruling

1. Before court is the 5th respondent’s notice of motion dated December 1, 2020. The application does not indicate the legal provisions that it is brought under.

2. The 5th respondent sought the review, variation and/or setting aside of orders (a) and (b) of the judgment dated November 18, 2020 to the extent that it required the 5th respondent to either pay afresh for the compulsorily acquired portion of 0. 075 Ha comprised in LR No MN/VI/3801LR 209/11827 (hereinafter ‘the suit property’) or surrender the same to the petitioners.

3. In the alternative and without prejudice, the 5th respondent sought that orders (a) and (b) of the said judgement be substituted with an order requiring the 1st and 6th respondent to remit to the 3rd petitioner the sums comprised in the award of Kshs 75,268,253/-.

4. The application was premised on the grounds that the 5th respondent is aggrieved by orders (a) and (b) of the said judgment that required it to hand back the suit property or pay afresh for the same. The same had been compulsorily acquired on its behalf and full compensation amount remitted to the 6th respondent.

5. The 5th respondent argued that the impugned orders constituted an error apparent on the face of the record and ought to be reviewed. This is so because the 5th respondent was made to overpay for the land by the 6th respondent which payment was promptly done and the proprietary interests in the subject land passed over to the 5th respondent.

6. That it is an error on the face of the record to require the 5th respondent to repay the said Kshs 75,268,253/- to the 3rd petitioner through the 6th respondent when the court had made a finding that such payment had been made.

7. Vide grounds of opposition dated December 14, 2020, the 1st respondent opposed the application. It contended that the application does not disclose the provision of the law upon which it is anchored. That the same raises substantive issues in dispute that should be addressed through an appeal to the Court of Appeal and that it has since filed a notice of appeal in respect to the errors in the judgment that is subject of the present application.

8. On the foregoing reasons, the 1st respondent urged that the application be dismissed with costs.

9. The petitioners jointly filed a lengthy replying affidavit sworn on December 14, 2020 in opposition to the application. The contents of the affidavit were largely on the substantive issues of the case that were already determined in the said judgment.

10. They contended that a respondent cannot seek orders against a fellow respondent unless the respondent seeking the orders had a cross petition of which the 5th respondent had none. That there is no error or mistake in the judgment concerning the non-payment of compensation and that the court found that the compensation is no longer in the hands of the petitioners and that it would be unconstitutional for the 3rd petitioner to lose the property and the compensation at the same time. That the 5th respondent should have appealed to the Court of Appeal.

11. The court has considered the record and the submissions of the parties.

12. Although the application did not disclose the provisions of the law under which it was brought, the prayers themselves disclose that the same was for review. Failure to cite the provisions is not fatal as that is a curable mistake under order 51 rule 10(1) of the Civil Procedure Rules.

13. Since the prayers sought are for review of a judgment, the applicable provision of the law is order 45 rule 1(1) of the Civil Procedure Rules. Under that provision, review will be granted if the application is made timeously, there is an error apparent of the face of the record, or there is discovery of new evidence that was unavailable at the time the ruling or judgment was made or for any sufficient reason.

14. In the present case, the 5th respondent sought the review on the grounds of an error apparent on the face of the record and of ‘sufficient reasons’. It sought the review and/or variation of orders (a) and (b) of the decree which stated that: -“(a)A declaration be and is hereby issued that the 1st and 5th respondent(s) (sic) cannot hold the portion measuring 0. 0752 Ha of Plot LR/MN/VI/3801, in Portreitz Mombasa together with compensation money thereto as that amounts to deprivation of property without compensation.(b)The 6th respondent be and is hereby directed to degazette an area of 0. 0752 Ha comprised in LR/MN/VI/3801 from being compulsorily acquired for and on behalf of the 5th respondent unless there is full and prompt compensation therefor.”

15. The undisputed facts in the judgment were that the 6th respondent awarded the 3rd petitioner Kshs 75,268,253/- without specifying the area of the suit property the same was for. That due to fraud by the 6th respondent’s officials, the 5th respondent remitted to the 6th respondent an inflated total sum of Kshs 109,769,363/- for onward transmission to the 3rd petitioner who is the proprietor of the suit property.

16. It was also an undisputed fact that the 6th respondent only forwarded a sum of Kshs 55,269,363/- to the 3rd petitioner and the balance of Kshs 54,500,000/- was sent to C W Chege & Co Advocates which distributed it amongst the 6th respondent’s directors and officers.

17. At paragraphs 35 and 36 of the judgment, I found that the process of compulsory acquisition was not successfully completed due to the corrupt practices of the 6th respondent’s officials and that the part payment of Kshs 55,269,363/- that was paid to the petitioners was transferred to the 1st respondent’s assets recovery account. That therefore, the 3rd petitioner could not lose the property and the compensation at the same time.

18. I found that the 5th respondent had not only paid the awarded sum of Kshs 75,268,253/- but had paid a whooping sum of Kshs 109,769,363/- to the 6th respondent for onward transmission to the 3rd petitioner for the acquisition of the suit property.

19. It is therefore clear that orders (a) and (b) of the judgment were made in error. They are not consistent with the findings and conclusions in the body of the judgment. The orders should be reviewed to be in line with the findings in the body of the judgment.

20. In this regard, I find that the application is meritorious and I allow the same by reviewing orders (a) and (b) as follows: -(a)A declaration that the 5th respondent fully paid compensation for the suit property to the 6th respondent for onward transmission to the 3rd petitioner.(b)An order hereby issues to the 1st and 6th respondent to pay to the 3rd petitioner forthwith, the full awarded compensation amount of Kshs 75,268,253/-.(c)Each party to bear own costs.

21. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A MABEYA, FCIArbJUDGE