[2025] KEHC 5593 (KLR)
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...
Source-derived case information.
- Citation
- [2025] KEHC 5593 (KLR)
- Parties
- Plaintiff: Joshua Musau Mutiso; Defendant: Cyrus Robert Sala Nzibu; Defendant: Faulu Microfinance Bank Limited
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 30 of 2018
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment
- Outcome
- Application for review dismissed; original orders upheld.
- Judges
- EN Maina
- Legal Topics
- Review of Judgment, Injunctions, Fraud in Property Transactions, Collateral Security, Foreclosure, Warrants of Arrest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Musau Mutiso
Plaintiff
Cyrus Robert Sala Nzibu
Defendant
Faulu Microfinance Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the 2nd Defendant has demonstrated sufficient grounds for review of the judgment delivered by Muigai J on 7th March, 2024.
- 2 Whether there is an error apparent on the face of the record, discovery of new evidence, or other sufficient reason to warrant review.
- 3 Whether the temporary injunction and warrant of arrest orders should be set aside or varied.
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.
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.
Full Case Text
Judgment text and source record
22 paragraphs
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