[2024] KEHC 13821 (KLR)

Son Hardware Limited v Ariumba Limited & another (Commercial Case E004 of 2022) [2024] KEHC 13821 (KLR) (17 September 2024) (Ruling)

Neutral citation: [2024] KEHC 13821 (KLR)

Republic of Kenya

In the High Court at Kajiado

Commercial Case E004 of 2022

SN Mutuku, J

September 17, 2024

Between

Son Hardware Limited

Plaintiff

and

Ariumba Limited

1st Defendant

Development Bank Of Kenya Ltd

2nd Defendant

Ruling

Background 1. Son Hardware Limited filed a Notice of Motion application dated 11th April 2022 seeking injunctive orders against the Respondents to restrain the 1st Respondent whether by itself, its agents, servants, nominees or in any way whatsoever from taking over the management of Great Grace Hostels located on LR No. Ngong/Ngong/33632 or in any way interfering with the said hostels and or aforesaid property pending the hearing and determination of that application and the main suit.

2. In a Ruling delivered by this Court on 10th January 2024, this court dismissed that application reasoning that the Applicant had to demonstrate that he deserved the orders he was seeking and besides, the issues he was raising had been determined by this court and the ELC as well as Court of Appeal in Civil Appeal No. 3 of 2019. The Applicant has moved this court again through another Notice of Motion.

Notice of Motion 3. It is that Ruling that has aggrieved the Applicant and motivated him to return to court through Notice of Motion application dated 19th January 2024. He is seeking orders for maintenance of status quo to preserve the subject matter of these proceedings and for review, variation and/or setting aside of the orders of this court issued on 10th January 2024.

4. The Applicant has supported that application with grounds found on the face of it and in the Supporting Affidavit sworn by Peter Muinami Juma. He deposed that this court in dismissing the earlier Notice of Motion relied on misleading information contained in the Replying Affidavit sworn on 5th May 2022 by Mbugua Gecaga and filed in Court on 19th July 2022 to the effect that there was a judgment relating to this matter in ELC No. 10 of 2021 which judgment does not exist; that instead, there was a ruling of the ELC which was issued in error and which ruling was later set aside by that court. It was deposed that the issues herein are not res judicata.

5. The Respondents chose not to respond to the application and leave matter to the court to decide. They also did not file submissions.

Applicant’s Submissions 6. The submissions are dated 2nd July 2024. The Applicant has relied on Order 51 Rule 14(1) to argued that the Application is not opposed because the Respondent has not filed Replying Affidavit, Grounds of opposition or Notice of Preliminary Objection and that the Application ought to be allowed.

7. It is submitted that the law is now settled that an applicant seeking to have orders reviewed must demonstrate discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.

8. It is argued that the issues being raised are not res judicata because the ruling in the ELC matter was made in error and the ELC has corrected that error; that the 1st Respondent was not a party in HCC No. 44 of 2018 and that the latter case was challenging the unlawful exercise of the statutory power of sale while this case is challenging an illegal sale of the Applicant’s property. It is submitted that this court in its impugned ruling imported facts into this case that do not belong to this case

Determination 9. I have considered the issues arising in this application. The Respondent has not challenged the application and therefore it stands unopposed. That notwithstanding the application has the duty to demonstrate to the court that it deserves the orders it is seeking. Order 45 Rule 1 (1) provides that:(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 (emphasis added).

10. I have given this matter careful consideration. It is not opposed by the Respondents. There also appears to be an apparent error on the face of the record. For ends of justice to be met, I will and do hereby allow the Notice of Motion application dated 15th January 2024, set aside the orders issued on 10th January 2024 and grant an order for status quo to preserve the subject matter of these proceedings pending the hearing and determination of this suit.

11. I also allow costs to the Applicant.

12. Orders accordingly.

DATED, SIGNED AND DELIVERED ON 17THSEPTEMBER 2024. S. N. MUTUKUJUDGE