Mutiso v Nzibu & another [2025] KEHC 5593 (KLR)
- Citation
- [2025] KEHC 5593 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- EN Maina
- Case number
- Civil Case 30 of 2018
- Language
- English
More details
- Court
- High Court
- Panel
- EN Maina
- Case number
- Civil Case 30 of 2018
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the 2nd Defendant failed to demonstrate any error apparent on the face of the record, discovery of new evidence, or other sufficient reason to warrant review of the judgment delivered by Muigai J. The orders issued, including the temporary injunction and warrant of arrest, were based on clear findings of fraud by the 1st Defendant, who had offered the Plaintiff's properties as collateral without authority. Allowing review would unjustly permit the 2nd Defendant to foreclose on the Plaintiff's properties despite the established fraud. The application for review was therefore declined, and the original orders were upheld to prevent injustice.
Court disposition
Application for review dismissed; original orders upheld.
Orders
- The 2nd Defendant's application for review is declined.
- The warrant of arrest against the 1st Defendant is extended.
- The Deputy Registrar is directed to issue a fresh warrant of arrest to be executed by the Officer Commanding Station, Machakos Police Station.
- The case shall be mentioned on 21/07/2025 to confirm progress.
02
Material facts
Parties
Joshua Musau Mutiso
Plaintiff Counsel: Ms Waweru for Mr. NgwiliCyrus Robert Sala Nzibu
Defendant Counsel: Ms MwikaliFaulu Microfinance Bank Limited
Defendant Counsel: Ms Swaka03
Procedural history
Posture
Civil Case / Ruling on Application for Review of Judgment
04
Questions and positions
Legal issues
- 01
Whether the 2nd Defendant has demonstrated sufficient grounds for review of the judgment delivered by Muigai J on 7th March, 2024.
- 02
Whether there is an error apparent on the face of the record, discovery of new evidence, or other sufficient reason to warrant review.
- 03
Whether the temporary injunction and warrant of arrest orders should be set aside or varied.
Party arguments
- Applicant
- The 2nd Defendant argued that the judgment of Muigai J should be reviewed on grounds that the orders issued, including the temporary injunction and warrant of arrest, were unjust and prejudicial. The applicant contended that there was either an error apparent on the face of the record or new evidence that warranted a review, and that the orders prevented the 2nd Defendant from exercising its rights over the collateral properties.
- Respondent
- The Plaintiff/Respondent opposed the application, asserting that the 2nd Defendant had not demonstrated any error, discovery of new evidence, or other sufficient reason to justify review. The Respondent maintained that the orders were clear, justified by the finding of fraud by the 1st Defendant, and necessary to prevent injustice.
05
Court’s reasoning
Legal principles
- 01
Order 45 Rule 1 of the Civil Procedure Rules (Kenya)
A court may review its judgment or order only if there is an error apparent on the face of the record, discovery of new and important evidence, or other sufficient reason.
- 02
Giella v Cassman Brown [1973] EA 358
Injunctions may be granted to preserve the subject matter of litigation where there is a risk of injustice or irreparable harm.
- 03
National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR
A party seeking review must strictly satisfy the grounds set out in the rules; mere dissatisfaction with the judgment is not sufficient.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the 2nd Defendant failed to demonstrate any error apparent on the face of the record, discovery of new evidence, or other sufficient reason to warrant review of the judgment delivered by Muigai J. The orders issued, including the temporary injunction and warrant of arrest, were based on clear findings of fraud by the 1st Defendant, who had offered the Plaintiff's properties as collateral without authority. Allowing review would unjustly permit the 2nd Defendant to foreclose on the Plaintiff's properties despite the established fraud. The application for review was therefore declined, and the original orders were upheld to prevent injustice.
Obiter and limits
- The court reiterates that review is not an avenue for parties to re-litigate matters already determined unless the strict criteria are met.
- The extension of the warrant of arrest is necessary to ensure compliance with the court's orders and the integrity of the proceedings.
Court disposition
Application for review dismissed; original orders upheld.
- The 2nd Defendant's application for review is declined.
- The warrant of arrest against the 1st Defendant is extended.
- The Deputy Registrar is directed to issue a fresh warrant of arrest to be executed by the Officer Commanding Station, Machakos Police Station.
- The case shall be mentioned on 21/07/2025 to confirm progress.
Source and reliance status
High Court
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Judgment text
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High Court
Judgment
Mutiso v Nzibu & another (Civil Case 30 of 2018) [2025] KEHC 5593 (KLR) (30 April 2025) (Ruling)
Neutral citation: [2025] KEHC 5593 (KLR)
Republic of Kenya
In the High Court at Machakos
Civil Case 30 of 2018
EN Maina, J
April 30, 2025
Between
Joshua Musau Mutiso
Plaintiff
and
Cyrus Robert Sala Nzibu
1st Defendant
Faulu Microfinance Bank Limited
2nd Defendant
Ruling
1. I have considered the 2nd Defendant’s application dated 6th December, which seeks an order for review of the judgment of Muigai J rendered on 7th March, 2024 in which the court issued a temporary injunction prohibiting the sale transfer and/or subdivision of the suit properties belonging to the Plaintiff/Respondent, pending conclusion of the matter of fraud/forgery by the 1st Defendant.
2. The Judge also issued a warrant of arrest against the 1st Defendant.
3. Learned Counsel for the parties to the application, have filed their submissions which I have now had opportunity to consider and having done so it is my finding that this application has no merit. There is no error apparent of the face of the record, or discovery of new evidence or any other sufficient reason demonstrated as to warrant a review of the judgment/orders granted by Muigai J.
4. In her judgment, Muigai J came to the conclusion that the 1st Defendant fraudulently offered the properties of the Plaintiff as security/collateral for a loan from the 2nd Defendant/Applicant. The court found that it was therefore unjust to allow the 2nd Defendant to foreclose the properties in light of the fraud and gave orders for the arrest of the 1st Defendant who had deliberately evaded to take part in the proceedings. To review the judgment as sought, would mean that the 2nd Defendant is at liberty to foreclose on the Plaintiff’s properties. This would result in an injustice in that there is nothing to warrant the review of the orders which were very clear when no error, new evidence or other sufficient reason has been demonstrated. In the premises the application is declined and this court shall stand by the orders of Muigai J.
5. The warrant of arrest issued against the 1st Defendant is extended and the case shall be mentioned on 21/07/2025 to confirm the progress. The Deputy Registrar to issue a fresh warrant of arrest to be executed by the Officer Commanding Station, Machakos Police Station.Orders accordingly.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF APRIL, 2025. E. N. MAINAJUDGEIn the presence of:Ms Mwikali for 1st DefendantMs Waweru for Mr. Ngwili for the Plaintiff/RespondentMs Swaka for 2nd Defendant/RespondentMiriam – Court Assistant
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