[2025] KEELC 1019 (KLR)

Mayfair Establishments Limited v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others (Environment & Land Case E099 of 2022) [2025] KEELC 1019 (KLR) (28 February 2025) (Ruling)

Neutral citation: [2025] KEELC 1019 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case E099 of 2022

LL Naikuni, J

February 28, 2025

Between

Mayfair Establishments Limited

Plaintiff

and

Abdulla Ali Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased)

1st Defendant

Kennedy Ellam Wekesa (Sued as the Legal Representative of the Estate of George Ellam Wekesa - Deceased)

2nd Defendant

Selina Wekesa

3rd Defendant

Catherine Wekesa

4th Defendant

Ruling

I. Introduction 1. This Honourable Court is tasked to make a determination of the Notice of Motion application by Mayfair Establishment Limited, the Plaintiff/Applicant herein dated 30th July, 2024 brought under a Certificate of Urgency. It was brought by the Plaintiff/Applicant under the provisions of Sections 1, 1A, 3, 3A and 80 of the Civil Procedure Act, 21 and Order 45 and 51 Rule 1 of the Civil Procedure Rules, 2010 and all other Enabling Provisions of the Law.

2. Upon service of the Application, the 4th Defendant herein while opposing it filed a Replying Affidavit dated 16th September, 2024. The Honourable Court shall deal with it in depth at a later stage of this Ruling.

II. The Plaintiff/Applicant’s case 3. The Plaintiff/Applicant sought for the following orders:-a.Spent.b.That the Honourable Court be pleased to review, vary and/or set aside its’ Ruling delivered on 30th July 2024. c.That the cost of this application be provided for.

4. The application was premised on the grounds, testimonial facts and the averments made out under the 21 Paragraphed supporting affidavit of J.S. ASIGE an Advocate of the High Court of Kenya and retained and instructed to represent the Plaintiff/Applicant herein together with two (2) annextures marked as “JSA - 1 & 2” annexed hereto. The Applicant averred that:a.His Law firm was served with Notice of Motion application dated 6th May 2024 drawn by Messrs. M/s Wameyo Onyango and Associates Advocates on behalf of the 4th Defendant herein. The motion never disclosed that it was to be served upon the Plaintiff or his firm or any other party to this suit.b.The Notice of Motion application was disguised as an application for amendment for the 4th Defendant’s Statement of Defence dated 26th September, 2022 as sought in prayer No. 1 of the Motion.c.However, under the contents of Paragraph 4 of the grounds of the Notice of Motion, the amendment for which leave was sought introduced a Counter - Claim against both the Plaintiff and 1st Defendant herein.d.The leave sought to amend the 4th Defendant’s Defence dated 26th September, 2022 was however not an application to amend the Defence but to introduce a Counter - Claim by way of Land adverse possession against the Plaintiff and 1st Defendant jointly.e.The intended Counter - Claim appeared and was marked as annexture “CW – 1” to the Supporting Affidavit of the 4th Defendant.f.The intended Counter - Claim couched as an amendment of defence to be filed against the Plaintiff and 1st Defendant was not an amendment of a pleading within the meaning and contemplation of the provision of Order 8 of the Civil Procedure Rules but an institution of a new, fresh and distinct suit against the Plaintiff and the 1st Defendant herein to the exclusion of the 2nd and 3rd Defendants in this suit.g.The Plaintiff filed and served Replying affidavit dated 10th June 2024 opposing the Notice of Motion application for leave to amend the 4th Defendant’s Defence as aforesaid. Annexed in the affidavit a copy of the said affidavit marked as “JSA -1”.h.On 11th June, 2024, this Court ordered the 4th Defendant to file and serve upon the Plaintiff and the 1st Defendant both the Notice of Motion application dated 6th May, 2024 and written submissions of the Motion within 14 days from the date of the order which period expired on 25th June 2024. i.The Plaintiff and the 1st Defendant were ordered to file and serve their written submissions if any, within 14 days of service by the 4th Defendant of her written submissions.j.The ruling in respect of the amendment, Notice of Motion application dated 6th May 2024 was fixed for delivery on 30th July 2024. k.The 4th Defendant never served the Plaintiff with her written submission until 25th July, 2024 at 4. 42 pm. Annexed in the affidavit a copy of submissions together with a forwarding covering email letter from the Law firm of Messrs. Wameyo Onyango & Associates marked as “JSA - 2”.l.Accordingly when the ruling in respect of 4th Defendant’s Notice of Motion application dated 6th May 2024 came up for delivery on 30th July 2024 the period of 14 days granted by the Court the Plaintiff to file reply had not expired and the ruling should have been deferred. This was an error apparent on the face of the record and the Court should have enlarged time for the filing of replying submissions by the Plaintiff and 1st Defendant.m.The 4th Defendant’s Counter - Claim was title ELC No. E099 of 2022 and the 4th Defendant named as Plaintiff, Mayfair Establishment Limited the Plaintiff herein was named as one of the Defendants. The Counter - Claim to be instituted by the 4th Defendant as a Plaintiff against Mayfair Establishment Limited and another as Defendants was incompetent, null and void as to constitute a Counter - Claim and or amendment of pleading as contemplated under Order 8 of the Civil Procedure Rules. This was an error apparent on the face of the record violating Order 37 of the Civil Procedure Rules which sets out a clear procedure for the institution of a claim of adverse possession.n.The motion for amendment of the 4th Defendant defence was being brought at the last minute after the Plaintiff has testified and closed its case and Defence hearing of the suit is fixed for 12th November 2024. o.The 4th Defendant had not given lawful excuse why the so-called amendment of defence was not filed timeously.p.The motion dated 6th May, 2024 was manifestly an abuse of the Court process and undermines principles of fair trial of the suit and would embarrass and delay the determination of this suit.q.According it was in the interest of justice that the Honourable Court reviews its ruling given on 30th July, 2024. r.Upon the grounds enumerated herein above the Honourable Court should review its ruling dated 30th July 2024 and vacate and set aside the orders granted and dismiss the 4th Defendant's Notice of Motion Application dated 6th May 2024.

III. The responses by the 4th Defendant. 5. While opposing the Notice of Motion application dated 30th July, 2024, the 4th Defendant filed a 20 Paragraphed Replying Affidavit dated 16th September, 2024 and sworn by CATHERINE WEKESA. She averred as follows:-a.She was the 4th Defendant herein and therefore competent to swear this affidavit. She had read and understood the contents of the Notice of Motion application dated 30th July, 2024 and where necessary had the same explained to her by her Advocates on record.b.The grounds upon which the aforesaid application is premised were factually inaccurate and legally frivolous in that:-i.There was no discovery of a new or important matter that could not have been presented at the time the orders were made as alleged or at all.ii.There were no mistakes and/or errors on the face of proceedings as alleged or at all.iii.The legal threshold for the invocation of the court's jurisdiction under section 86 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules had not been made.c.Under Paragraphs 4 & 5 of the supporting affidavit were strange in their imputations, more so in the light of the fact that the nature and depth of the amendments as sought in the application dated 6th may, 2024 was explicitly stated in ground no. 4 of the said application which was couched thus:-“That in the circumstances it is just and expeditious that the 4" defendant be granted leave to amend the statement of defence dated 26th September, 2022 in order to introduce a Counter - Claim against the Plaintiff and the 1" Defendant on grounds of adverse possession."d.The parties herein are quite aware of the 4th Defendant's claim for possessory interest since the same has been adequately covered in the averments in the statement of defence and the introduction of the Counter - Claim never prejudiced the parties herein.e.The foregoing facts were not just reiterated in supporting affidavit but made perfectly clear by the annexing of the Draft amendments which specifically set out the intended Counter - Claim.f.Thus, it was clear that there was no dispute on the intention of the 3rd Defendant on the nature of amendment she intended to make.g.The paragraph of her submissions herein on the said application draws focus to the very nature of the amendment sought by stating that:-“By an application dated 6th May, 2024 the 4th Defendant is seeking the amendment of the defence to introduce a Counter - Claim”.h.The harmonious theme that rung throughout the aforesaid application, as supported by various case laws, was the need for the amendments to ensure an exhaustive determination of the issues presented before the court, complete with a final positive declaration flowing from such determination.i.She was informed by her Advocates on record that such an approach was not antithetical to the primary objective, of this court, which was the expeditious determination of disputes, as more particularly set out in Section 18 of the Environment and Land Court Act as read together with Article 159(1)(b) of the Constitution.j.The need for an expeditious determination of all issues relating to the suit property called for the amendments to enable the court to make a decision that would bring the same to closure.k.All these facts were argued out in the spent application and the submissions filed in respect thereof.l.She was further informed by her Advocates on record that the ruling of this court as delivered on 30th July, 2024 took into the cognzance the aforesaid issues and was consequently a determination on the same.m.Additionally, she was informed by her Advocates on record that since the ruling was the determination of the aforesaid contested issues, the only avenue left open to the Plaintiff, in the event that it is aggrieved by the same, is to file an appeal against the said ruling.n.That the Plaintiff had the opportunity to raise the issues it now raised, during the hearing of the application dated 6th May, 2024. The Plaintiff was now seeking to re-litigate the issues that this honourable court had pronounced itself on with finality.o.The Plaintiffs application dated 30. 7.2024 was inimical to the just and expeditious determination of the suit herein. The premise of paragraph 6 of the Plaintiff's supporting affidavit was faulty in so far as it does not take into account the fact that a Counter - Claim needed to be included in the Statement of Defence if a Defendant wanted to assist his own claim against the Plaintiff in the same suit.p.In the circumstances, in order to introduce a Counter - Claim there is need for leave to amend the defence to introduce the Counter - Claim in the manner that she did.r.In view of the foregoing, the Plaintiff's application was frivolous and otherwise an abuse of the court process and should be dismissed with costs.

IV. Submissions 6. On 15th October, 2024 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 18th July, 2024 be disposed of by way of written submissions. Unfortunately, by the time of penning down this Ruling the Honourable Court had not been able to access itself to any the Submission if at all by the parties hereof. Pursuant to that all the parties obliged and a ruling date was reserved on 17th December, 2024 by Court accordingly.

V. Analysis and Determination 7. I have carefully read and considered the pleadings herein, the written submissions and the cited authorities by the Learned Counsels and the relevant provisions of the Constitution of Kenya, 2010 and the statures. In order to arrive at an informed, just, fair and reasonable decision, the Honorable Court has crafted two (2) following salient issues for its determination.a.Whether the Notice of Motion application dated 30th July, 2024 by the Plaintiff/ Applicant has made out a case of the review and setting aside the orders made in the Ruling delivered on the 30th July 2024?b.Who meets the costs of the Notice of Motion application dated 30th July, 2024?ISSUE No. a) Whether the Notice of Motion application dated 30th July, 2024 by the Plaintiff/ Applicant has made out a case of the review and setting aside the orders made in the Ruling delivered on the 30th July 2024.

8. Under this Sub – heading, the main substratum is on causing the Honourable Court to consider review, setting aside, varying and/or discharging orders made in the Ruling delivered by this Honourable Court on 30th July, 2024. The application by the Applicant was brought under the provisions of Sections 1, 1A, 3, 3A and 80 of the Civil Procedure Act, 2010 and Order 45 and 51 Rule 1 of the Civil Procedure Rules, 2010 and all other Enabling Provisions of the Law. A clear reading of these provisions indicates that the provision of Section 80 is on the power to do so while Order 45 sets out the rules on doing it.

9. The provision of Section 80 of the Civil Procedure Act Cap 21 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; 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.”

10. While the provision of 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; orb.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.”

11. Briefly, and prior to proceeding further, the Honourable Court wishes to extrapolate on a few case law on this subject matter. In the case of:- “Republic – Versus - Public Procurement Administrative Review Board & 2 others [2018] eKLR” it was held:“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) 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; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”

12. Additionally, in the case of “Sarder Mohamed – Versus - Charan Singh Nand Sing and Another (1959) EA 793” where the High Court held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate.

13. Broadly speaking, in the case of “Republic – Versus - Public Procurement Administrative Review Board & 2 others [2018] e KLR” it was held: -“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) 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; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”

14. Courts have severally dealt with the issue of review. The Supreme Court in “Application No 8 of 2017, Parliamentary Service Commission – Versus - Martin Nyaga Wambora & others [2018] eKLR”, quoted with approval the findings of the East Africa Court of Appeal in “Mbogo and another - Versus - Shah [1968] EA”, upon establishing the following principles: -(31) Consequently, drawing from the case law above, particularly Mbogo and Another v Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows:i.A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this Court.ii.Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;iii.An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.iv.In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.v.During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.vi.The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:a.as a result, a wrong decision was arrived at; orb.it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.

15. From the stated provisions, it is quite clear that the powers to cause any review, variation or setting aside a Court’s decision are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. To qualify for being granted the orders for review, varying and/or setting aside a Court order under the above provisions to be fulfilled, the following ingredients, jurisdiction and scope are required.a.There should be a person who considers himself aggrieved by a Decree or order;b.The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;c.A decree or order from which no appeal is allowed by this Act;d.There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; ore.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.f.The review is by the Court which passed the decree or made the order without unreasonable delay.

16. I have previously stated in this Honourable Court in the case of “Sese (Suing as the Administrator of the Estate of the Late Shali Sese) – Versus - Karezi & 8 others (Environment and Land Constitutional Petition 32 of 2020) [2023] KEELC 17427 (KLR)” held that:-“The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is permissible.”

17. The Applicant contends that his Law firm was served with with Notice of Motion application dated 6th May 2024 drawn by M/s. Wameyo Onyango and Associates Advocates on behalf of the 4th Defendant herein. The motion did not disclose that it is to be served upon the Plaintiff or his firm or any other party to this suit. To him, the application was disguised as an application for amendment for the 4th Defendant’s Statement of Defence dated 26th September, 2022 as sought in prayer No. 1 of the Motion. However, the contents under Paragraph 4 of the grounds of the Notice of Motion, the amendment for which leave is sought is to introduce a Counter - Claim against both the Plaintiff and 1st Defendant herein. The leave sought to amend the 4th Defendant’s defence dated 26th September, 2022 was however not an application to amend the Defence but to introduce a Counter - Claim by way of adverse possession against the Plaintiff and 1st Defendant jointly.

18. The intended Counter - Claim appeared and was marked as annexture “CW – 1” to the Supporting Affidavit of the 4th Defendant. The intended Counter - Claim couched as an amendment of defence to be filed against the Plaintiff and 1st Defendant was not an amendment of a pleading within the meaning and contemplation of Order 8 of the Civil Procedure Rules but an institution of a new, fresh and distinct suit against the Plaintiff and the 1st Defendant herein to the exclusion of the 2nd and 3rd Defendants in this suit. The Plaintiff filed and served Replying affidavit dated 10th June 2024 opposing the Notice of Motion for leave to amend the 4th Defendant’s Defence as aforesaid. On 11th June, 2024, this Court ordered the 4th Defendant to file and serve upon the Plaintiff and the 1st Defendant both the Notice of Motion dated 6th May, 2024 and written submissions of the Motion within 14 days from the date of the order which period expired on 25th June 2024.

19. The Plaintiff and the 1st Defendant were ordered to file and serve their written submissions if any, within 14 days of service by the 4th Defendant of her written submissions. The ruling in respect of the amendment, Notice of Motion dated 6th May 2024 was fixed for delivery on 30th July 2024. Accordingly when the ruling in respect of 4th Defendant’s Notice of Motion application dated 6th May 2024 came up for delivery on 30th July 2024 the period of 14 days granted by the Court the Plaintiff to file reply had not expired and the ruling should have been deferred. This is an error apparent on the face of the record and the Court should have enlarged time for the filing of replying submissions by the Plaintiff and 1st Defendant.

20. I have examined the records and the and it is clear that the Honourable Court overlooked the fact that the 14 days to file response to the Plaintiff had not lapsed I find that this qualifies as an error apparent on the record of the Court. Having considered the application, rival affidavits and submissions as well as the background of this suit and the relevant law, I am of the view the orders sought are warranted. In view of the foregoing and having regard to the overriding objective of the Environment and Land Court Act, 2011 which is to facilitate the just, expeditious, proportionate and accessible resolution of disputes governed by this Act, I am inclined to exercise my discretion in favour of the Applicant. I shall therefore proceed to review the ruling delivered on 30th July, 2024.

21. On the said ruling, the 4th Defendant sought under Section 3A of the Civil Procedure Act Cap 21 Law of Kenya, the provision of Order 8 Rule 3 of the Civil Procedure Rules to:-a.That this Honourable Court be pleased to grant the 4th Defendant leave to Amend the Statement of Defence dated 26th September 2022. b.That the costs of this application be in the cause.

22. The Plaintiff contends that the 4th Defendant’s Counter - Claim was title ELC No. E099 of 2022 and the 4th Defendant named as Plaintiff, Mayfair Establishment Limited the Plaintiff herein was named as one of the Defendants. The Counter - Claim to be instituted by the 4th Defendant as a Plaintiff against Mayfair Establishment Limited and another as Defendants is incompetent, null and void as to constitute a Counter - Claim and or amendment of pleading as contemplated under Order 8 of the Civil Procedure Rules. It is my own assessment that this is an error apparent on the face of the record violating the provision of Order 37 of the Civil Procedure Rules, 2010, Sections 7, 13 and 38 of the Limitation of Actions Act. Cap. 22 of the Laws of Kenya, together with a myriad of well known authorities by the Court of Appeal and Supreme Court of Kenya including but not limited to “Mtana Lewa – Versus – Kahindi Ngala Mwagandi (2016), eKLR”; “Kimani Ruchure – Versus – Swift Rutherfords & Co Limited (1980) KLR 10 and “Gabriel Mbui – Versus – Mukindia Maranya (1993) eKLR” which sets out a clear procedure for the institution of a claim of land adverse possession.

23. For this reason, therefore, I discern reasonable grounds to set aside the ruling I delivered on 30th July, 2024 as I have considered the contentions of the Plaintiff and extensively expounded on the reasons as to why I initially allowed the Notice of Motion application dated 6th May, 2024. Thus, the Notice of Motion application dated 30th July is found to be meritorious and therefore allowed.ISSUE No. b). Who will bear the Costs of Notice of motion application dated 30th July, 2024

24. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.

25. In the present case, the Honourable Court elects not to award any costs.

VI. Conclusion & Disposition 26. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience. Clearly, the Applicant has not made out their case as per the Notice of Motion application dated 30th July, 2024.

27. Having said that much, there will be need to preserve the suit land in the meantime. In a nutshell, I proceed to order the following:-a.Thatthe Notice of Motion application dated 30th July, 2024 be and is hereby found have merit and thus allowed.b.Thatthe matter to be mentioned on 18th March, 2025 before Justice Hon. Olola for further direction.c.Thatthere shall be costs to this Application.

It Is So Ordered Accordingly.

RULING DELIEVERED THROUGH THE MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 28TH DAY OF FEBRUARY 2025. ………………………………..HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURT ATMOMBASARuling delivered in the presence of:a. M/s. Firdaus Mbula, Court Assistant.b. Mr. Asige Advocate for the Plaintiff/Applicant.c. M/s. Amina holding brief for Mr. Khalid Salim Advocate for the 1st, 2nd & 3rd Defendant/Respondents.d. Mr. Wameyo Advocate for the 4th Defendant/Respondent.