https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12085

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **MISCELLANEOUS CIVIL APPLICATION NO. E023 OF 2025** **(CORAM: HON. CHARLES M. KARIUKI J.)** **ANGELINE NAANYU KIPTENG……..……………………………APPLICANT** **VERSUS** **GOOD HOPE SACCO LIMITED…………………………..…...RESPONDENT** **RULING** 1. **INTRODUCTION** 2. This ruling concerns two related matters arising from the Applicant's Notice of Motion dated 9th April 2025, in which leave to appeal out of time against surcharge orders issued under the Co-operative Societies Act was granted ex parte. Following those orders, the Respondent filed the Notice of Motion dated 29th October 2025 seeking review, variation and setting aside of the ex parte orders, while the Applicant raised a Preliminary Objection dated 30th October 2025 challenging the competence of the review application. The Court will first determine the Preliminary Objection because, if successful, it may dispose of the review application in its entirety. 3. Before the Court is a Notice of Motion dated 29th October 2025 filed by Good Hope Sacco Limited (hereinafter “the Respondent/Applicant”) seeking review, variation and/or setting aside of the orders issued by this Court on 24th April 2025 in favour of Angeline Naanyu Kipteng (hereinafter “the Applicant/Respondent”), the impugned orders granted the Applicant leave to file an appeal out of time against surcharge orders issued by the Commissioner for Co-operative Development through the surcharge letter dated 13th January 2022 and notice dated 14th January 2022. 4. The Applicant/Respondent had moved this Court through a Notice of Motion dated 9th April 2025 seeking leave to appeal out of time against the surcharge decision, together with interim orders restraining enforcement of the surcharge pending determination of the intended appeal. Upon consideration of the application, the Court granted the orders sought on 24th April 2025. 5. The Respondent/Applicant subsequently filed the present application for review contending that the orders were obtained irregularly and without allowing it to be heard. It is argued that the Applicant/Respondent failed to join the Commissioner for Co-operatives, who was the author of the impugned surcharge decision, and that the proceedings were therefore defective. The Respondent further contends that the Applicant engaged in procedural impropriety by withdrawing and subsequently filing applications without leave, thereby obtaining ex parte orders that affected its interests. 6. The application is opposed by the Applicant/Respondent through a Replying Affidavit sworn on 30th October 2025 and a Supplementary Affidavit sworn on 3rd March 2026. The Applicant maintains that the review application is incompetent, misconceived, and an abuse of the court process. She contends that the Respondent was duly served with the application for leave to appeal out of time but failed to participate in the proceedings. She further argues that the Respondent has failed to meet the threshold for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. 7. The Applicant additionally filed a Preliminary Objection dated 30th October 2025 challenging the competence of the review application on grounds that it was filed through the wrong procedural mechanism, was barred by the filing of an appeal before the Co-operative Tribunal, and amounted to an attempt to re-litigate issues already determined. 8. The parties filed extensive written submissions. The Court has considered the pleadings, affidavits, submissions, and authorities relied upon by both parties. 9. **PLEADINGS** 10. **Notice of Motion** 11. The Notice of Motion dated 9th April 2025 seeks, principally, leave to appeal out of time against the surcharge orders issued by the Commissioner for Co-operatives through the surcharge letter dated 13th January 2022 and notice dated 14th January 2022. The applicant also prays that the annexed memorandum of appeal be deemed duly filed upon payment of the requisite court fees. Pending the hearing and determination of both the application and the intended appeal, she seeks injunctive orders restraining the Commissioner for Co-operatives and the respondent from enforcing the surcharge orders. In the alternative, she seeks orders restraining the respondent, the Directorate of Criminal Investigations (DCI), and other investigative agencies from arresting or harassing her in relation to the surcharge, as well as orders compelling the respondent to produce documents allegedly required to facilitate the intended appeal, including inquiry and inspection records, minutes of meetings, surcharge notices, and financial reconciliation records. 12. She contends that the Co-operative Tribunal lacks jurisdiction under section 74(1) of the Co-operative Societies Act to enlarge time for filing an appeal, thereby vesting jurisdiction in the High Court. 13. She further maintains that the delay in filing the appeal was occasioned by circumstances beyond her control, including the respondent's failure to supply essential documents despite court orders, and asserts that she has an arguable appeal with high prospects of success. 14. The applicant also alleges that the respondent intends to use criminal investigations to harass her and enforce the surcharge, and contends that unless the orders sought are granted, she will suffer irreparable prejudice. In contrast, the intended appeal will be rendered nugatory. 15. **Supporting Affidavit** 16. In her supporting affidavit sworn on 9th April 2025, the applicant reiterates the grounds set out in the motion and depones that she is dissatisfied with the surcharge orders but was unable to appeal within the prescribed time because the respondent failed to provide documents necessary for preparing the appeal, notwithstanding earlier court orders and a notice to produce. 17. She avers that the respondent withdrew related proceedings with the intention of pursuing criminal action against her and relies on a replying affidavit filed in an earlier matter to demonstrate the existence of ongoing DCI investigations. 18. She attributes the delay in filing the appeal to the respondent's non-compliance with court orders, the need to respond to multiple proceedings instituted by the respondent, and circumstances beyond her control rather than indolence. 19. The applicant further states that enforcement of the surcharge would expose her to arrest, harassment, and substantial prejudice, contrary to the principles of natural justice. She annexes copies of the surcharge orders, previous pleadings, notices to produce, a list of related cases, and a draft memorandum of appeal, asserting that the intended appeal raises arguable grounds with a high likelihood of success. 20. She therefore urges the Court, in the interests of justice, equity, and the constitutional right of access to justice, to grant leave to appeal out of time together with the interim and ancillary orders sought. 21. **Notice of Motion** 22. The Notice of Motion dated 29th October 2025 seeks review, variation and/or setting aside of the orders issued by the High Court on 24th April 2025. The applicant, Good Hope Sacco Limited, contends that the earlier application dated 9th April 2025, through which Angeline Naanyu Kipteng obtained leave to appeal out of time against surcharge orders issued by the Commissioner for Co-operatives, was fundamentally defective because the Commissioner—the maker of the impugned surcharge orders—was not joined as a party. The applicant further asserts that although the respondent initially filed a notice withdrawing the application, she subsequently filed an amended notice of motion without leave of the court, resulting in procedural confusion. 23. It is argued that, by a ruling delivered on 19th September 2025, the court confirmed that the application dated 9th April 2025 remained the only application pending for hearing. Yet, ex parte orders had already been granted. The applicant therefore maintains that those orders should be reviewed and set aside to enable all affected parties, including the Commissioner for Co-operatives, to participate in the proceedings. 24. It is further contended that the leave granted out of time enabled the respondent to file an irregular appeal against a non-party, contrary to the Civil Procedure Rules and the constitutional right to a fair hearing. 25. The applicant maintains that sufficient grounds exist for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and that no prejudice incapable of compensation would be occasioned by granting the orders sought. 26. **Supporting Affidavit** 27. In the supporting affidavit sworn on 29th October 2025, Elvis Salaton Ololkipai, the Chief Executive Officer of Good Hope Sacco Limited, reiterates the grounds advanced in the motion. 28. He depones that the respondent deliberately failed to join the Commissioner for Co-operatives in the proceedings to prevent opposition to the application for leave to appeal out of time after the statutory period had lapsed. He further avers that the respondent delayed service of the application, obtained ex parte orders, served the applicant together with a notice of withdrawal, and thereafter filed additional applications, including an amended motion without leave. 29. He annexes the notice of withdrawal, the amended application, the ruling of 19th September 2025, the draft memorandum of appeal, and the surcharge orders in support of these assertions. The deponent maintains that the appeal filed pursuant to the ex parte leave was irregular because it challenged orders issued by a person who had not been joined in the proceedings. 30. He further states that unless the impugned orders are reviewed and set aside, the applicant risks losing funds allegedly embezzled through the surcharge process. He therefore urges the court to exercise its review jurisdiction in the interests of justice, fairness, and compliance with the rules of natural justice. 31. **Notice of Preliminary Objection** 32. The Notice of Preliminary Objection dated 30th October 2025 challenges the competence of the Notice of Motion dated 29th October 2025 and seeks its striking out with costs. The applicant contends that the application is incompetent, misconceived, and an abuse of the court process, having been filed contrary to the provisions of section 80 of the Civil Procedure Act, Order 1 Rule 10, and Order 51 Rule 14 of the Civil Procedure Rules. 33. It is further asserted that the application was filed without leave of the court and without a satisfactory explanation, and that it is founded on matters that arose after the court had already issued orders on the earlier notice of motion. 34. The applicant maintains that the respondent, despite being duly served, failed to attend court or file a response when directions were given, and therefore cannot seek to reopen the proceedings through the impugned application. It is consequently argued that the prayers sought cannot be granted because the application is improperly before the court and is a nullity. 35. The preliminary objection further asserts that the respondent has approached the court with unclean hands and urges the court to dismiss the application with costs to uphold the interests of justice and preserve the rule of law. 36. **Affidavit in answer to respondent’s application dated 29/10/2025.** 37. In the affidavit in answer sworn on 30th October 2025, Angeline Naanyu Kipteng opposes the respondent's Notice of Motion dated 29th October 2025, contending that it is incompetent, procedurally defective, and filed without leave of the court or sufficient cause under section 80 of the Civil Procedure Act. 38. She argues that the application is an abuse of the court process as it seeks to introduce a fresh application instead of responding to her pending application through a replying affidavit, grounds of opposition, or a preliminary objection. She further asserts that the respondent cannot seek review on matters that were within its knowledge at the time the impugned orders were made and accuses it of concealing material evidence, including failure to produce the SASRA report as allegedly directed by the court. According to the deponent, the application is a deliberate attempt to delay and obstruct the determination of her application and to evade compliance with existing court orders. 39. The deponent further maintains that the respondent's allegations of "sharp practice" arising from her withdrawal of the earlier application are misconceived, asserting that withdrawal was a lawful procedural step that had already been addressed by the court and did not amount to bad faith. She contends that any omission to join the Commissioner for Co-operatives was a curable procedural defect that should not defeat the substantive merits of her application, particularly in light of the court's discretion to permit amendments and the constitutional imperative to administer justice without undue regard to technicalities. She also disputes the respondent's assertions regarding the Commissioner for Co-operatives, arguing that they are founded on technical objections rather than the substance of the dispute, and maintains that the respondent was duly served but deliberately chose not to participate in the proceedings. 40. The applicant further depones that a substantive appeal has already been filed pursuant to the leave granted by the court and that the matter is now properly before the Co-operative Tribunal, rendering the respondent's application for review inappropriate and contrary to the principle of finality in litigation. She argues that allowing the application would create legal uncertainty and duplicate proceedings, particularly where the respondent has already participated in the appeal by raising a preliminary objection. She therefore urges the court to treat the facts contained in her application dated 9th April 2025 as uncontroverted, uphold the orders issued on 24th April 2025, and dismiss the respondent's application with costs on the ground that it is intended only to frustrate the intended appeal and delay the administration of justice. 41. **Supplementary affidavit** 42. In the supplementary affidavit sworn on 3rd March 2026, Angeline Naanyu Kipteng further opposes the respondent's application for review and reiterates that the application is devoid of merit. She disputes the contention that the Commissioner for Co-operatives was a necessary party to the application for leave to appeal out of time, maintaining that the Commissioner acted in a quasi-judicial capacity and was not an indispensable party at the leave stage. She further denies allegations of bad faith or "sharp practice," asserting that the withdrawal of her application dated 9th April 2025 was a lawful procedural step taken on legal advice and not an attempt to mislead the court or circumvent statutory timelines. She also contends that service of the earlier application was duly effected, as evidenced by an affidavit of service and email records, and that the subsequent amendment of the application was permissible under the Civil Procedure Rules and did not occasion any prejudice to the respondent. 43. The deponent further avers that the filing of multiple applications addressed distinct legal issues and that the appeal lodged before the Co-operative Tribunal complied with the court's orders granting leave to appeal out of time. She maintains that, following the court's ruling declaring the motion dated 9th April 2025 as the only application pending for hearing, complaints relating to earlier withdrawals or amended applications became irrelevant. She argues that the respondent has failed to demonstrate any prejudice warranting the setting aside of the ex parte orders and instead elected to file a review application rather than respond to the substantive motion. She further contends that the respondent's challenge raises issues suitable for an appeal rather than review, as it neither identifies an error apparent on the face of the record nor presents any new and important evidence unavailable when the impugned orders were made. She also asserts that the review application was filed outside the prescribed period and is therefore incompetent. 44. The applicant additionally depones that the court possessed inherent jurisdiction to grant the impugned orders in the interests of justice, and that the Commissioner for Co-operatives was neither denied the right to be heard nor prejudiced by the proceedings. She maintains that the validity of the appeal before the Co-operative Tribunal cannot be challenged through the present review proceedings. She characterises the respondent's application as an afterthought intended to delay the determination of the substantive appeal and deny her the benefit of the orders already granted. She further argues that any loss alleged by the respondent is purely monetary and compensable by damages. At the same time, the surcharge itself remains the subject of pending appellate proceedings before the Co-operative Tribunal. Accordingly, she urges the court to dismiss the application for review and allow the matter to proceed to final determination without further interlocutory challenges. 45. **PARTIES SUBMISSIONS** 46. **Applicant’s Submissions.** 47. The applicant/respondent submits that the Notice of Preliminary Objection dated 30th October 2025 and the opposition to the Notice of Motion dated 29th October 2025 should be upheld because the respondent's application is procedurally incompetent, legally untenable, and an abuse of the court process. It is argued that the application violates Order 51 Rule 14 of the Civil Procedure Rules by seeking to challenge a pending application through a fresh motion instead of a replying affidavit or grounds of opposition, contrary to the principle that where the law prescribes a particular procedure, it must be strictly followed. Reliance is placed on **Speaker of the National Assembly v James Njenga Karume [1992] eKLR**, for the proposition that where a statute provides a specific procedure for redress, that procedure must be followed. The applicant further submits that the application for review is barred by Order 45 Rule 5 of the Civil Procedure Rules because leave to appeal out of time had already been granted, the appeal had been filed before the Co-operative Tribunal, and once an appeal has been preferred, the jurisdiction of the court to entertain a review is extinguished. It is further contended that the respondent has failed to establish any error apparent on the face of the record or any other statutory ground for review under Order 45 Rule 1, and is merely seeking to relitigate matters already determined, thereby using the review jurisdiction as a substitute for an appeal. 48. The applicant also urges the court to strike out paragraphs 4 and 5 of the supporting affidavit sworn on 29th October 2025, arguing that they are speculative, scandalous, argumentative, and contain legal conclusions rather than facts, contrary to Order 19 Rule 6 of the Civil Procedure Rules. It is submitted that statements accusing the applicant of "sharp practice," dishonesty, and bad faith are matters for legal submissions rather than affidavit evidence and are founded on mere apprehension rather than personal knowledge. Reliance is placed on **Buhari v Independent National Electoral Commission (INEC) & Others [2008] LPELR**, for the principle that affidavits should contain facts within the deponent's knowledge and not arguments, opinions, or conclusions. 49. On the merits of the motion for review, the applicant submits that the Commissioner for Co-operatives was not a necessary party at the leave stage because the application merely sought leave to appeal out of time, while the Commissioner would only become a proper party in the substantive appeal. It is argued that the withdrawal of the earlier application was a lawful procedural step taken upon revised legal advice and did not amount to bad faith or an attempt to circumvent statutory timelines. The applicant further maintains that service of the earlier application was duly effected, that the amended application was properly filed, and that the appeal before the Co-operative Tribunal was lodged in compliance with the court's orders. It is therefore contended that complaints regarding withdrawn or amended applications became moot following the court's ruling declaring the application dated 9 April 2025 as the only application remaining for determination. 50. The applicant further argues that the respondent lacks a proper basis for invoking the court's review jurisdiction because the alleged errors relate to the merits of the court's decision rather than any error apparent on the face of the record. It is submitted that the respondent has not produced any new and important evidence that was unavailable despite due diligence when the impugned orders were made and has therefore failed to satisfy the threshold under Order 45 Rule 1. The applicant also contends that the review application was filed outside the prescribed period without any explanation for the delay, rendering it incompetent. 51. Finally, the applicant submits that the court properly exercised its inherent jurisdiction under section 3A of the Civil Procedure Act in granting leave to appeal out of time and that no party's constitutional right to a fair hearing under Article 50(1) was infringed. It is argued that any alleged loss to the respondent is purely monetary and therefore compensable by damages, while the surcharge dispute is already pending before the Co-operative Tribunal. The applicant further invokes the doctrines of functus officio and finality of litigation, submitting that once the appeal was filed, any challenge to its regularity lies before the appellate forum rather than by way of review. Consequently, the Applicant urges the court to uphold the preliminary objection, strike out paragraphs 4 and 5 of the supporting affidavit, dismiss the Notice of Motion dated 29th October 2025 with costs, and allow the substantive appeal to proceed without further interlocutory challenges. 52. The Applicant submitted that the Respondent’s application for review should be dismissed and the preliminary objection upheld because the Respondent had failed to satisfy the legal threshold for setting aside the ex parte orders issued on 24th April 2025. It was argued that the Respondent’s complaint of being denied the right to be heard was unfounded since the Applicant had properly served the application for extension of time, as demonstrated by the Affidavit of Service filed on 23rd March 2025 and the Judiciary’s Electronic Case Management System records. Consequently, the Respondent had been afforded a reasonable opportunity to participate in the proceedings but failed to do so. Reliance was placed on **Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, Civil Application No. Nai. 179 of 1998**, where the Court of Appeal held that the law requires parties to be given a reasonable opportunity to be heard, and once such opportunity is afforded but not utilised, a party cannot subsequently complain of denial of the right to be heard. The Applicant further cited **Wachira & Others v Macharia & Others [2005] eKLR** for the proposition that a party seeking to set aside ex parte orders bears a heavy burden of demonstrating a serious procedural irregularity. East **African Community v Peter Mathuki [2021] eKLR** together with section 107 of the Evidence Act (Cap. 80) to submit that the burden of proving defective service lay on the Respondent, which burden had not been discharged. 53. The Applicant further contended that subsequent developments reinforced the propriety of the ex parte orders. Particular reliance was placed on the ruling of the Co-operative Tribunal delivered on 19th March 2026, which allegedly affirmed the High Court’s orders, dismissed the Respondent’s preliminary objection with costs, directed the filing of the record of appeal within prescribed timelines, and thereby confirmed the validity of the leave granted to appeal out of time. It was submitted that the Respondent’s review application, filed several months after the impugned orders, was an abuse of the court process intended only to delay the appeal before the Tribunal and obstruct the Applicant’s pursuit of justice. The Applicant maintained that the Respondent’s repeated delays, failure to adduce credible evidence, and contradictory conduct—including acknowledging the court’s jurisdiction while simultaneously disputing service—demonstrated bad faith and amounted to an abuse of process. In support of that contention, reliance was placed on **Zablon Okumu Ochieng v Kenya Revenue Authority [2018] eKLR on** waiver through conduct, **Musa Hassan Abdi v National Bank of Kenya Limited [2018] eKLR on** abuse of court process, and **Shah v Mbogo (1967) EA 116** on the court’s discretion to prevent injustice. The Applicant therefore urged the Court to uphold the preliminary objection, dismiss the review application and the Respondent’s further submissions for alleged non-compliance with court directions, compel compliance with the Tribunal’s orders, and award punitive costs against the Respondent. 54. The Applicant submitted that the Respondent’s application for review should be dismissed and the preliminary objection upheld because the Respondent had failed to satisfy the legal threshold for setting aside the ex parte orders issued on 24th April 2025. It was argued that the Respondent’s complaint of being denied the right to be heard was unfounded since the Applicant had properly served the application for extension of time, as demonstrated by the Affidavit of Service filed on 23rd March 2025 and the Judiciary’s Electronic Case Management System records. Consequently, the Respondent had been afforded a reasonable opportunity to participate in the proceedings but failed to do so. Reliance was placed on **Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, Civil Application No. Nai. 179 of 1998**, where the Court of Appeal held that the law requires parties to be given a reasonable opportunity to be heard, and once such opportunity is afforded but not utilised, a party cannot subsequently complain of denial of the right to be heard. The Applicant further cited **Wachira & Others v Macharia & Others [2005] eKLR** for the proposition that a party seeking to set aside ex parte orders bears a heavy burden of demonstrating a serious procedural irregularity. East **African Community v Peter Mathuki [2021] eKLR** together with section 107 of the Evidence Act (Cap. 80) to submit that the burden of proving defective service lay on the Respondent, which burden had not been discharged. 55. The Applicant further contended that subsequent developments reinforced the propriety of the ex parte orders. Particular reliance was placed on the ruling of the Co-operative Tribunal delivered on 19th March 2026, which allegedly affirmed the High Court’s orders, dismissed the Respondent’s preliminary objection with costs, directed the filing of the record of appeal within prescribed timelines, and thereby confirmed the validity of the leave granted to appeal out of time. It was submitted that the Respondent’s review application, filed several months after the impugned orders, was an abuse of the court process intended only to delay the appeal before the Tribunal and obstruct the Applicant’s pursuit of justice. The Applicant maintained that the Respondent’s repeated delays, failure to adduce credible evidence, and contradictory conduct—including acknowledging the court’s jurisdiction while simultaneously disputing service—demonstrated bad faith and amounted to an abuse of process. In support of that contention, reliance was placed on **Zablon Okumu Ochieng v Kenya Revenue Authority [2018] eKLR on** waiver through conduct, **Musa Hassan Abdi v National Bank of Kenya Limited [2018] eKLR** on abuse of court process, and **Shah v Mbogo (1967) EA 116** on the court’s discretion to prevent injustice. The Applicant therefore urged the Court to uphold the preliminary objection, dismiss the review application and the Respondent’s further submissions for alleged non-compliance with court directions, compel compliance with the Tribunal’s orders, and award punitive costs against the Respondent. 56. **Respondent’s Submissions.** 57. The applicant submits that the Notice of Motion dated 29th October 2025 satisfies the legal threshold for review and setting aside of the ex parte orders issued on 24th April 2025, arguing that the court has jurisdiction under section 80 of the Civil Procedure Act, Order 45 Rule 1. Order 51 Rule 15 of the Civil Procedure Rules to review or set aside ex parte orders where sufficient cause is established. It is submitted that the power to set aside such orders is intended to prevent injustice and uphold the rules of natural justice by ensuring that no party is condemned unheard. In support of this proposition, reliance is placed on **Shah v Mbogo [1967] EA 116**, where the Court held that the discretion to set aside ex parte orders is intended to avoid injustice or hardship arising from accident, inadvertence, or excusable mistake; P**atel v East African Cargo Handling Services Ltd [1974] EA 75,** which affirmed that the court's discretion is unfettered and should be exercised to achieve justice between the parties**; Samuel Thiongo James & Another v Benson Nderitu Kagiri [2021] eKLR,** emphasizing the court's wide discretion to set aside ex parte orders where sufficient cause is shown; **Mbogo v Kirubi [2024] KEELC 14118 (KLR)**, recognizing the court's jurisdiction under Order 51 Rule 15 to set aside ex parte orders; and **Karatina Garments Ltd v Nyanarua (1976) KLR 94**, which similarly affirmed the discretionary nature of that jurisdiction. 58. On the merits, the applicant argues that the ex parte orders ought to be reviewed because they were granted without affording it an opportunity to be heard, contrary to the principles of natural justice and the maxim audi alteram partem. It is submitted that the respondent sought leave to appeal more than three years after the surcharge decision of 13th January 2022 without offering a satisfactory explanation for the prolonged delay. The applicant relies on **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR,** in which the Supreme Court held that extension of time is an equitable remedy rather than a right and that an applicant must satisfactorily explain the delay while the court considers whether the delay is inordinate and prejudicial to the opposing party. According to the applicant, those principles were not met before leave to appeal out of time was granted. 59. The applicant further submits that the impugned orders have caused prejudice by reopening statutory surcharge proceedings without hearing the party affected, thereby undermining the finality of administrative decisions. It is argued that the interests of justice require that the respondent's application dated 9th April 2025 be heard inter partes so that both parties have an equal opportunity to present their respective cases. Relying again on **Patel v East African Cargo Handling Services Ltd [1974] EA 75**, the applicant contends that the court's primary concern in dealing with ex parte orders is to do justice between the parties, which can only be achieved through an inter partes hearing. The applicant therefore urges the court to review, vary, or set aside the ex parte orders issued on 24th April 2025, direct that the respondent's application dated 9th April 2025 be heard inter partes, and award the costs of the application to the applicant. 60. In its further written submissions, the respondent/applicant urges the court to dismiss the Notice of Preliminary Objection dated 30th October 2025, contending that it does not meet the legal threshold of a proper preliminary objection and should not bar the hearing of the Notice of Motion dated 29th October 2025 on its merits. The respondent submits that its application is properly founded on sections 1A, 1B, 3A and 80 of the Civil Procedure Act, together with Order 45 and Order 51 Rule 1 of the Civil Procedure Rules, seeking review, variation, or setting aside of the ex parte orders issued on 24th April 2025. It argues that the preliminary objection is misconceived because it raises disputed factual matters requiring evidentiary proof rather than pure points of law. Reliance is placed on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, where the East African Court of Appeal held that a preliminary objection must raise a pure point of law, argued on the assumption that the pleaded facts are correct, and cannot be sustained where facts require ascertainment or where judicial discretion is involved. 61. The respondent further submits that the objection wrongly challenges the competence of the review application by invoking Order 1 Rule 10 and Order 51 Rule 14 of the Civil Procedure Rules. It argues that section 80 of the Civil Procedure Act and Order 45 expressly confer jurisdiction upon the court to entertain an application for review. In contrast, section 3A of the Civil Procedure Act preserves the court's inherent jurisdiction to make such orders as are necessary for the ends of justice. According to the respondent, Order 1 Rule 10 supports its case by emphasising the necessity of joining indispensable parties, particularly the Commissioner for Co-operatives, whereas Order 51 Rule 14 merely regulates the filing of responses to applications and has no bearing on the competence of the motion. It is also submitted that no leave of the court is required before filing an application for review under Order 45, and that the supporting affidavit adequately explains the circumstances warranting review, including the procedural confusion arising from the notice of withdrawal, the omission of the Commissioner for Co-operatives as a party, and the manner in which the ex parte orders were obtained. 62. The respondent also contends that several grounds of the preliminary objection are inherently factual and therefore unsuitable for determination as preliminary objections. It argues that allegations relating to abuse of process, lack of satisfactory explanation, subsequent events, nullity, and unclean hands all require factual investigation and the exercise of judicial discretion, contrary to the principles set out in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.** It further submits that the allegation of nullity is unsupported by any jurisdictional defect and that the objection merely repeats assertions without demonstrating any legal basis for striking out the application. 63. Finally, the respondent submits that the application promotes rather than undermines the interests of justice because it seeks to set aside ex parte orders allegedly obtained without joining the Commissioner for Co-operatives, who is said to be a necessary party to the proceedings. It argues that allowing the application would uphold procedural fairness, ensure compliance with Order 1 Rule 10 of the Civil Procedure Rules and Article 50(1) of the Constitution, and allow all affected parties to be heard in accordance with the overriding objectives set out in sections 1A and 1B of the Civil Procedure Act. The respondent therefore urges the court to dismiss the preliminary objection in its entirety, direct that the Notice of Motion dated 29th October 2025 be heard on its merits, and grant any further orders necessary to achieve a just determination of the dispute. 64. **ISSUES FOR DETERMINATION** 65. Having considered the pleadings and submissions, the issues arising for determination are: 66. **Whether the Applicant's Preliminary Objection dated 30th October 2025 raises pure points of law and is competent.** 67. **Whether the Respondent has satisfied the requirements for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.** 68. **Whether the ex parte orders issued on 24th April 2025 ought to be reviewed, varied or set aside.** 69. **What orders should issue as to costs.** 70. **ANALYSIS AND DETERMINATION** 71. **Whether the Preliminary Objection is competent** 72. The Applicant/Respondent raised a Preliminary Objection challenging the competence of the Respondent’s review application. The objection is premised on the argument that the application was brought through the wrong procedure, that the Respondent ought to have opposed the application dated 9th April 2025 through a replying affidavit or grounds of opposition, and that the review application is an abuse of the court process. 73. The law on preliminary objections is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, the East African Court of Appeal stated that a preliminary objection must consist of a pure point of law which is argued on the assumption that the facts pleaded by the other party are correct and which, if successful, disposes of the matter. 74. The Court must therefore determine whether the grounds raised are pure points of law or whether they require examination of disputed facts. 75. The Respondent argues that the Preliminary Objection raises factual issues including service, alleged bad faith, and whether the Commissioner was a necessary party. The Applicant, on the other hand, contends that issues relating to jurisdiction, statutory bars, and procedural competence are matters of law capable of determining the application. 76. The Court finds that some grounds raised in the Preliminary Objection, particularly those relating to service and alleged bad faith, require factual evaluation and cannot properly be determined as preliminary points of law. However, the questions whether a review application is barred by law, whether the correct procedure was followed, and whether the Court has jurisdiction to entertain the application are matters of law. 77. Consequently, the Preliminary Objection cannot succeed in its entirety. The Court will therefore proceed to determine the substantive issues raised in the review application. 78. **Whether the Respondent has satisfied the requirements for review** 79. The power of review is derived from section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 80. Order 45 Rule 1 provides that review may only be granted where an applicant demonstrates: 81. discovery of new and important evidence which was not within his knowledge despite due diligence; 82. mistake or error apparent on the face of the record; or 83. any other sufficient reason. 84. The Court of Appeal in **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR** held that review jurisdiction is not intended to enable a party to reargue its case or obtain a second opportunity to challenge the correctness of a decision. The Court stated: “*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.”* 1. Similarly, in **Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR**, the Court of Appeal held that review is not an avenue for an unsuccessful party to revisit issues already determined or to substitute review for an appeal. 2. In the present case, the Respondent’s complaint is principally that the Court granted leave to appeal out of time without joining the Commissioner for Co-operatives and without hearing the Respondent. These complaints relate to the correctness of the Court’s exercise of discretion and the procedure adopted, rather than discovery of new evidence or an error apparent on the face of the record. 3. The Respondent has not demonstrated any new evidence which was unavailable at the time the orders were issued. Neither has it demonstrated an obvious error apparent from the record. 4. The Court therefore finds that the Respondent has not satisfied the statutory threshold for review under Order 45 Rule 1 of the Civil Procedure Rules. 5. **Whether the Respondent was denied the right to be heard** 6. The Respondent contends that the orders of 24th April 2025 violated its constitutional right to a fair hearing under Article 50(1) of the Constitution because they were issued ex parte. 7. The right to be heard is a fundamental principle of natural justice. However, a party alleging denial of the right to be heard must demonstrate that it was denied a reasonable opportunity to participate. 8. In **Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, Civil Application No. Nai. 179 of 1998**, the Court of Appeal held that the law requires a party to be given a reasonable opportunity to be heard and that where such opportunity is given but not utilised, the party cannot later complain of denial of justice. 9. Similarly, in **East African Community v Peter Mathuki [2021] eKLR**, the Court emphasised that the burden of proving a procedural irregularity rests upon the party alleging it. 10. The record before Court shows that the Applicant presented an Affidavit of Service indicating that the Respondent was served with the application for leave to appeal out of time. The Respondent disputes service but has not placed before Court sufficient evidence to rebut the affidavit of service. 11. Under section 107 of the Evidence Act (Cap. 80 Laws of Kenya), he who alleges must prove. The Respondent has not discharged that burden. 12. The Court therefore finds that there is no sufficient basis to conclude that the Respondent was denied an opportunity to be heard. 13. **Whether failure to join the Commissioner for Co-operatives rendered the proceedings defective** 14. The Respondent argues that the Commissioner for Co-operatives was a necessary party because he issued the surcharge orders. 15. The Court notes that the application dated 9th April 2025 was principally an application for leave to appeal out of time. It was not the substantive appeal against the surcharge decision. 16. The question whether the Commissioner is a necessary party in the substantive appeal is a matter for the appellate forum. 17. The law does not require every person connected with the subject matter to be joined at every procedural stage. In **Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55**, the Court held that proceedings should not fail merely because of non-joinder where the rights of parties can otherwise be determined. 18. Further, Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 19. The Court therefore finds that failure to join the Commissioner at the leave stage did not render the orders of 24th April 2025 invalid. 20. **Whether the pending appeal barred the review application** 21. The Applicant argues that the review application is barred under Order 45 Rule 5 of the Civil Procedure Rules because an appeal had already been filed before the Co-operative Tribunal. 22. Order 45 Rule 5 provides: *“Where an appeal has been preferred from a decree or order, no application for review shall be entertained.”* 1. The Applicant submits that the appeal was filed pursuant to the leave granted by this Court and that once the appeal was lodged, jurisdiction to review ceased. 2. The Court has considered this argument. However, the present review application was filed on 29th October 2025. The appeal before the Tribunal was a consequence of the orders issued on 24th April 2025. The Respondent challenges the very foundation upon which the appeal rests. 3. While the filing of an appeal may limit review jurisdiction, the Court retains jurisdiction to determine whether the orders granting leave were properly obtained before the appeal proceeds. 4. In the circumstances of this matter, the Court finds that the filing of the appeal does not automatically prevent consideration of the review application. 5. **Whether the application amounts to abuse of process** 6. The Applicant alleges that the review application is intended to delay the appeal. 7. Courts have inherent jurisdiction to prevent abuse of their process. In **Shah v Mbogo [1967] EA 116**, the Court held that discretion must be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake. 8. However, the mere filing of an application seeking review does not amount to abuse of process unless it is demonstrated that it is frivolous, vexatious, or intended to obstruct justice. 9. Having considered the circumstances, the Court is not satisfied that the Respondent acted in such a manner as to justify striking out the application on that basis. 10. The Respondent raised genuine concerns regarding participation in proceedings affecting its interests. Those concerns, though ultimately unsuccessful, cannot be said to be wholly frivolous. 11. **DISPOSITION** 12. **In view of the foregoing analysis, the Court finds that the Respondent has not demonstrated sufficient grounds for review, variation, or setting aside of the orders issued on 24th April 2025.** 13. **The Notice of Motion dated 29th October 2025 is therefore without merit and is hereby dismissed.** 14. **The Preliminary Objection dated 30th October 2025 is similarly dismissed.** 15. **The orders issued by this Court on 24th April 2025 granting leave to appeal out of time shall remain in force.** 16. **The Applicant shall proceed with the appeal before the Co-operative Tribunal in accordance with the directions issued by that Tribunal.** 17. **Costs of the application are awarded to the Applicant/Respondent.** 18. Orders accordingly. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 30TH DAY OF JULY, 2026.** **CHARLES KARIUKI** **JUDGE**