[2025] KEELC 3820 (KLR)

Kitonga & 2 others v Hashtag Biz Hub Co. Limited (Environment and Land Appeal 67 of 2019) [2025] KEELC 3820 (KLR) (15 May 2025) (Ruling)

Neutral citation: [2025] KEELC 3820 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal 67 of 2019

OA Angote, J

May 15, 2025

Between

Titus Mulandi Kitonga

1st Appellant

Nasimiyu Mulandi Kitonga

2nd Appellant

Shem Onyango

3rd Appellant

and

Hashtag Biz Hub Co. Limited

Respondent

Ruling

1. The Respondent/Applicant has filed a Notice of Motion application dated 3rd April 2024 pursuant to Articles 28, 40, 47(1) and 159(2) of the Constitution of Kenya 2010, Sections 23(7) and 18 of the Environment and Land Court Act and Order 45 Rule 1 of the Civil Procedure Rules. The Respondent/Applicant has sought the following orders:a.That this Honourable Court be pleased to review its orders to include an order staying execution of the judgment delivered on 14th March 2024 pending the hearing and determination of the Court of Appeal Case Number E327 of 2021 Titus Mulandi Kitonga and 2 others v Hashtagbiz Hub Company Ltd.b.That the Honourable Court be pleased to stay execution of the Judgment delivered on 14th March 2024 pending the hearing and determination of the Court of Appeal Case Number E327 of 2021 Titus Mulandi Kitonga and 2 others v Hashtagbiz Hub Company Ltd.c.That the costs of this application be provided for.

2. The application is supported by the Supporting Affidavit sworn by Joseph Njenga Kiarie, the Respondent’s Advocate, who deposed that this court delivered its judgment on 14th March 2024 in favour of the Appellant and that the Respondent being aggrieved by the court orders which set aside the court’s ruling and orders delivered on 11th September 2019 has sought a review of the order of the court.

3. The Respondent’s counsel deponed that the Appellant failed to disclose to this court that there is a pending appeal filed by the Appellants in the Court of Appeal case Number E327 of 2021 Titus Mulandi Kitonga and 2 others v Hashtagbiz Hub Company Ltd which is pending hearing and determination, and that unless this court reviews its ruling and stays execution of the judgment delivered on 14th March 2024, the appeal might be rendered nugatory, hence embarrassing this court.

4. The Respondent’s Counsel deponed that the Appellants have begun harassing and threatening the Respondent and his tenants, and have started destroying the Respondent’s property claiming to be the winners of the case, though the matter is pending hearing and determination in the Court of Appeal as well as in the Chief Magistrates’ Court on merit.

5. The Respondent’s Counsel pleaded that the three judge bench in the Court of Appeal Case Number E327 of 2021 dismissed the Appellant’s application with costs at first instance, citing failure by the appellant to satisfy the twin principles for grant of stay under Rule 5(2)(b) of the Court of Appeal rules. He stated that unless these orders are granted, the judgment would be rendered nugatory and urged that the Appellants will not be prejudiced if the orders prayed for herein are allowed.

6. The 1st Appellant opposed the application through a Replying Affidavit dated 9th April 2024. He deponed that he had the authority of the 2nd and 3rd Appellants to swear this affidavit on their behalf. He deponed that there is no appeal in the Court of Appeal between the parties herein, and that it is true that the Appellants filed a Civil Appeal (Application No. E327 of 2021) seeking for stay of execution of the ruling of Justice Obaga pending hearing and determination of an intended Appeal.

7. It is the Appellants’ case that what was filed was a civil application and not a main appeal; that the ruling in Civil Appeal No. E.327 of 2021 was indeed delivered and no main appeal was filed upon the delivery of the Ruling in the said appeal.

8. Further, it was deposed, there is no record of appeal in existence at the Court of Appeal and the Respondent has not attached the alleged record of appeal to his application. Rather, what the Respondent has attached is the Civil Application filed in the Court of Appeal which has already been determined by the Court of Appeal judges. It is then the Appellants’/Respondents contention that there is nothing to review as sought by the Respondent.

9. The Respondent/ Applicant filed a Further Supporting Affidavit dated 3rd May 2024, in which he deponed that the application for review is premised on Order 45 Rule 1 of the Civil Procedure Rules which allows the Court to review its judgment on grounds that a mistake in law has been discovered.

10. The Respondent contended that the Appellants have admitted the existence of an active appeal between the same parties based on the same subject matter in Civil Appeal E327 of 2021, which is pending hearing and determination on merit by the Court of Appeal and that there is a Memorandum of Appeal dated 9th June 2021 filed in the Court of Appeal.

11. It was deposed by the Respondent/Applicant that a mistake in law was made by this court in concluding that the Appellants were in possession of the property and yet it is the Respondents who have been in possession since they bought the suit property from the Appellants way back in 2015, and that if indeed the Appellants have been in possession of the suit property, they would not have issued eviction orders to the Respondent’s tenants who have been on the suit property since 2015.

12. He deponed that it is paramount that the judgment is reviewed and clear orders are given because the Appellants have interpreted the court’s judgment as orders for eviction and have started evicting the Respondent’s tenants from the property.

13. Counsel for the Respondent/Applicant submitted that the Respondent’s application for review of the judgment is meritorious and that there is an error on the face of the record as the Appellants misled this court and came with unclean hands by omitting crucial information, being the existence an active appeal which was running concurrently with this suit.

14. Counsel submitted that while the Appellate court in Civil Appeal E327 of 2022 dismissed the application on 16th December 2022, the main appeal is yet to be heard and determined on merit. They relied on the case of Manchester Outfitters Limited & 2 Others vs Galot Holdings Limited & 3 others [2024] KEELC 6029 (KLR) where the court set out several precedents on the power of a court to review a judgment or order of the court. Counsel also relied on the cases of Grace Akinyi vs Gladys Kemunto Obiri & Another [2016] eKLR and Silvester Muema Musyoka vs Anna Kamanthe Nyamai & another [2021] eKLR.

15. Counsel for the Appellants/Respondents submitted that exhibit JNK-1, annexed to the supporting affidavit, which the Applicant informed the court that is a record of appeal, is in fact Civil Application No. E327 of 2021, which had been filed by the Appellants on 9th June 2021 seeking stay of orders made by Honourable Judge Obaga on 6th May 2021 pending the hearing and determination of the intended appeal.

16. Counsel further submitted that the Respondent/Applicant has also attached the ruling of the Court of Appeal in the same application, Civil Application No. E327 of 2021 that arose from Civil Application E327 of 2021.

17. It was deponed that the Respondent/Applicant is contradicting itself by stating in its Notice of Motion severally that there is a pending Appeal No. E327 of 2021 by the Appellants, which if determined would render the judgement of this court nugatory, yet it has attached the ruling of the Court of Appeal meaning that there is in fact no pending appeal, rendering this application hopeless, incompetent and misleading to the court.

18. It was submitted that the application was filed under Rule 5(2) of the Court of Appeal Rules and that in the ruling, the Court of Appeal stated that the application had failed to satisfy the twin principles for grant of stay under Rule 5(2) of the Court of Appeal Rules.

19. Counsel submitted that the reasons adduced by the Respondent for review of this court’s judgment are not valid reasons and that the Respondent has not indicated in its application that it disagrees with or is dissatisfied with the judgment of this court. Counsel relied on the case of Caltex Oil (K) Limited vs Rono Limited [2016] eKLR where the court held that if a party wishes the court to determine or grant a prayer, it must be specifically pleaded and proved.

20. Counsel also quoted the case of Cabinet Secretary Ministry of Health vs Aura & 13 other [2024] KECA 2 eKLR where the court held that a court cannot stay execution of an order with respect to which there is no notice of appeal.

21. The Appellants’ Counsel urged this court to find that the court lacks the mandate and jurisdiction to stay its judgment as the Respondent has not appealed nor does it intend to appeal this court’s judgment. They also relied on the case of Nguruman Limited vs Shampole Group Ranch & Another [2014] eKLR.

Analysis and Determination 22. Having considered the application; the pleadings filed in reply and the submissions filed by the parties, the following issues are for this court’s consideration;a.Whether this court should review its judgment dated 14th March 2024. b.Whether this court should stay execution of the Judgment delivered on 14th March 2024 pending the hearing and determination of the Court of Appeal Case Number E327 of 2021.

23. The facts herein are that the Appellant filed an appeal before this court challenging the ruling of the Honourable Magistrate, Hon. Mmasi, made on 11th September 2019 in Milimani CMCC 4665 of 2019. The impugned ruling by Hon. Mmasi allowed the Respondent’s application and granted a temporary injunction restraining the Defendants to the suit from interfering with the suit property, being parcel number Nairobi/Block Tassia 11-97/0794/088 until the suit is heard and determined.

24. This court considered the merits of the Appellants’ appeal and found that the sale agreement did not satisfy the formal requirements set out in Section 3(3) of the Law of Contracts Act because neither the signatures of the Respondent’s Directors nor the 1st and 2nd Appellants’ signatures were attested.

25. This court also found that the Respondent did not pay the deposit in full and that in the application that was filed before the trial court, the Respondent admitted that the 3rd Appellant was resident on the suit property as a tenant of the 1st and 2nd Appellants.

26. Accordingly, vide a judgement dated 14th March 2024, this court dismissed the Appeal and issued the following orders:a.The ruling and orders of the Honourable magistrate delivered on 11th September 2019 be and are hereby set aside.b.The application dated 27th June 2019 in CMCC No. 4665 of 2019 is hereby dismissed with costs.c.The respondents to pay the costs of this appeal.

27. Section 80 of the Civil Procedure Act provides as follows:-“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; or(b)by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

28. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”

29. On the basis of these provisions, there are three grounds for review: 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 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 and whatever the ground, there is a requirement that the application has to be made without unreasonable delay.

30. The Respondent/Applicant has sought that this court reviews its judgment to include an order staying execution of the judgment delivered on 14th March 2024 pending the hearing and determination of the Court of Appeal Case Number E327 of 2021 Titus Mulandi Kitonga and 2 others v Hashtagbiz Hub Company Ltd.

31. The Respondent argues that there is an error on the face of the record because the Appellant did not inform this court that there is an active appeal pending before the Court of Appeal.

32. An error apparent on the face of the record must be evident and does not require extraneous arguments. This position was stated by the Ugandan Court of Appeal in the case of Apollo Waswa Basude & 2 Others (As administrators to the Estate of the late Sepiriya Rosiko) vs Nsabwa Ham, Civil Appeal No 288 of 2016, where the court stated thus:“…an error apparent on the face of the record is one that is evident and its incorrectness does not require any extraneous matter by way of proof. It is so manifest and clear that no court of law exercising its judicial power would allow it to remain on the court record. This error may be either of fact or of law…”

33. This court has considered the pleadings and annextures exhibited by the Respondent with respect to Court of Appeal Civil Appeal (Application) Number E327 of 2021. This appeal was instituted through an application under Section 5(2) of the Court of Appeal Rules and was with respect to the ruling delivered by Hon. Justice E.O. Obaga on 6th May 2021 in this suit. The ruling was with respect to an application for stay of execution of the ruling and orders of Hon. Mmasi dated 11th September 2019.

34. In his ruling, Justice Obaga dismissed the application with costs and held that the status quo that should prevail is the status before the 3rd Appellant entered the property.

35. Civil Appeal (Application) No. 327 of 2021 was disposed of by the Court of Appeal through a ruling dated 16th December 2022, which has been annexed on the Respondent’s application. The Court of Appeal while dismissing the application found that it had failed to satisfy the twin principles for grant of stay under Rule 5(2) of the Court of Appeal Rules.

36. While the Respondent/Applicant contends that there is a substantive appeal pending with respect to Civil Appeal (Application) No. 327 of 2021, the Memorandum of Appeal presented before this court is for an intended appeal. The reliefs sought in the purported substantive appeal are for setting aside the ruling and orders of the Honourable magistrate delivered on 11th September 2019, which this court has already set aside through its judgment dated 14th March 2024.

37. That being the case, it is clear that as at 3rd April 2024, Civil Appeal No. 327 of 2021 had already been finalized by the Court of Appeal, in its determination of 16th December 2022.

38. Even if this court were to find that the proceedings in the Court of Appeal were not within the Respondent’s/Applicant’s knowledge, there is no basis for this court to review its Judgment as the application in the Court of Appeal has already been determined.

39. Similarly, there is no basis for this court to stay execution of the judgment dated 14th March 2024 as the Respondent/Applicant has not proved that any appeal is pending before the Court of Appeal. After all, it is trite that orders of stay of execution are granted for the purpose of preserving the subject matter pending determination of an appeal.

40. Considering that the existence and pendency of any appeal against the Judgment of this court has not been established, there are no grounds for this court to issue orders of stay of execution.

41. In conclusion, this application is wholly unmerited and is for dismissal. As costs follow the event, costs of this application shall be borne by the Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 15TH DAY OF MAY, 2025. O. A. ANGOTEJUDGEIn the presence of;Mr. Orindo for AppellantMs Wacheka for Kiarie for RespondentCourt Assistant: Tracy