[2022] KEHC 10832 (KLR)

Njihia v Jarika County Lodge & another (Civil Case E005 of 2021) [2022] KEHC 10832 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10832 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Case E005 of 2021

HK Chemitei, J

June 9, 2022

Between

Lucy Wairimu Njihia

Plaintiff

and

Jarika County Lodge

1st Respondent

George Muigai Njihia

2nd Respondent

Ruling

1. The application dated 13th October 2021 by the applicant seeks to have the court review its ruling dated 4th October 2021 and or varied it. It also seeks to have the same stayed.

2. The application is supported by the grounds thereof and the sworn affidavit of the 2nd respondent/applicant dated the same day.

3. The substantive grounds for seeking a review of the said ruling is that one of the 1st respondent’s directors has since passed and that there was no resolution in filing the suit. That arbitration ought to be initiated first before the ruling is implemented.

4. In essence the applicant contents that the directors stand to suffer loss should the orders not reviewed.

5. The plaintiff has opposed the application vide her replying affidavit dated 20th November 2021 where she has deponed that the 1st respondent is a company and is perpetual and the demise of some of the directors does not in any way affect its operations.

6. That there was nothing new and important which was not within the applicant’s knowledge at the time of arguing the impugned application which should necessitate the court to review its orders.

7. The court directed the parties to file their written submissions which was compiled to by the plaintiff alone. The court does not intent to reproduce the same.

8. The court has perused the application and the grounds to be considered for an application for review are well settled under Order 45 Rule 1 of the Civil Procedure Rules. The same state as hereunder;

9. Application for review of decree or order [Order 45, rule 1. ]“(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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

10. I have looked at the said application and respectfully do not find anything new which was not within the applicant’s knowledge before the court delivered its ruling. Neither does the court find any apparent error on the face of it. The issue of the death of some of the directors, a fact confirmed by the respondent was well within his knowledge. In any case that does not mean that the company cannot cease its operation as it is legally perpetual.

11. On the other hand, the issue of arbitration was and is not new. The same was captured by the court in its ruling pursuant to the provisions in the Memorandum and Articles of Association of the 1st respondent.

12. The applicant has not demonstrated any prejudice the company stands to suffer out of the courts orders he is seeking to review. At any rate he has not preferred any appeal against the same.

13. In the premises, this application does not meet any of the threshold envisaged under the provisions of Order 45 cited above.

14. The court is also alive to the application dated 8th December 2021 by the applicant which among others had sought to expedite the application dated 13th October 2021. It also seeks to restrain Paul Ndungu Njihia and Samuel Kagotho Njihia from accessing the 1st defendant premises pending the determination of the suit.

15. The court does not find the same merited as well for the simple reason that the court in its ruling dated 4th October 2021 gave a clear road map to the parties. Nowhere did the court directed the parties to use any force or violence to manage the 1st respondent.

16. If, as it is suggested by the applicant there was any use of force and some people or property destroyed, then the criminal process kicks in as a matter of cause. For now, the orders dated 4th October 2021 are in force. The parties were directed to take up arbitration exercise and there is no evidence that the same has been undertaken and or finalised.

17. This court cannot micro manage the parties as the directives are clear. Apparently there is no evidence of any appeal against the said ruling. The application for review as indicated above cannot stand.

18. In the premises, the two application, dated 13th October 2021 and 8th December 2021 are hereby dismissed with costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 9THDAY OF JUNE 2022. H K CHEMITEI.JUDGE