[2021] KEELC 2046 (KLR)
The court held that the applicant failed to demonstrate any error apparent on the face of the record or discovery of new evidence to warrant a review of the ruling dated 26th January 2021. The court found that the applicant's reliance on the ground of 'any other sufficient reason' was unpersuasive, as the sum...
Source-derived case information.
- Citation
- [2021] KEELC 2046 (KLR)
- Parties
- Plaintiff: Tahir Sheikh Said Investment Limited; Defendant: Bank of Africa Limited; Interested Party: Abdulmajid Mohamed Adam
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 203 of 2019
- Procedural Posture
- Review Application / Ruling on Application for Review of Previous Court Order
- Outcome
- application dismissed
- Judges
- CK Yano
- Legal Topics
- Review of Court Orders, Security for Injunction, Error on Face of Record, Discovery of New Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tahir Sheikh Said Investment Limited
Plaintiff
Bank of Africa Limited
Defendant
Abdulmajid Mohamed Adam
Interested Party
Procedural Posture
Review Application / Ruling on Application for Review of Previous Court Order
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for review of the court's ruling dated 26th January 2021.
- 2 Whether the sum ordered to be deposited as security is excessive and constitutes sufficient reason for review.
- 3 Whether the application for review is in substance an appeal against the court's own decision.
Ratio Decidendi
The court held that the applicant failed to demonstrate any error apparent on the face of the record or discovery of new evidence to warrant a review of the ruling dated 26th January 2021. The court found that the applicant's reliance on the ground of 'any other sufficient reason' was unpersuasive, as the sum ordered to be deposited as security for an injunction cannot be deemed colossal in the context of the case. The court further determined that the application was, in substance, an attempt to appeal the court's own decision under the guise of a review, which is not permissible under the law. Consequently, the application for review was dismissed with costs to the respondent, and the...
Court Disposition
application dismissed
Orders
- The application dated 18th February 2021 is dismissed with costs to the respondent.
- The injunctive orders issued on 18th February 2021 at the ex-parte stage are vacated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC.NO. 203 OF 2019
TAHIR SHEIKH SAID INVESTMENT LIMITED.......................PLAINTIFF
VERSUS
BANK OF AFRICA LIMITED......................................................DEFENDANT
ABDULMAJID MOHAMED ADAM........................... INTERESTED PARTY
RULING
1. For determination is the notice of motion dated 18th February 2021 by the plaintiff/applicant. The plaintiff seeks orders to vary and/or review the ruling dated 26th January 2021.
2. The application is brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act as well as Order 45 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules. The application is supported by the affidavit of Fatma Tahir Sheikh Said. The application is opposed by replying affidavit of Mr. Charles Waiyaki. Directions were given that the application be canvassed by way of written submissions which were filed by the parties.
3. In the application, the applicant seeks inter alia, a review of the court ruling delivered on 26th January 2021. In prayer 4, the applicant seeks an alternative prayer that the conditions imposed by the court in the said ruling of depositing Kshs.398,044,619/= be varied and a bank guarantee or insurance bond for Kshs. 50 million within 90 days from the date of granting the prayer.
4. There are 12 grounds set out in support of the application. The main ground, however, being the sums to be deposited in line with the ruling of 26th January 2021 are colossal,
5. This being an application for review, the court is guided by the principles as set out in Order 45 of the Civil Procedure Rules. The said principles are that: i) there must be an error apparent on the face of the record, ii) new evidence being discovered, and iii) any other sufficient reason.
6. The applicant places reliance on the third principle of “any other sufficient reason.” The applicant argues that the order to deposit Kshs.398,044,619/= which sum the plaintiff views as colossal as the sufficient ground for review. In my view, a decretal sum and/or security to be deposited for purposes of an appeal as a condition for grant of an injunction cannot be said to be colossal, and it is in this court’s view that the ground for discovery of new evidence nor being the ground of an error apparent on the face of the record is tantamount to asking the court to sit on appeal of its own decision. In this regard, whereas the application seeks for review, it is basically an appeal, and this court cannot pretend to sit on appeal over its own decision. There being no sufficient ground to warrant the review of this court’s earlier orders, the application dated 12th February, 2021 is hereby dismissed with costs to the respondent. The injunctive orders that had been issued on 18. 2.2021 at the ex-parte stage are hereby vacated.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 26TH DAY OF JULY 2021
___________
C.K. YANO
JUDGE
IN THE PRESENCE OF:
Yumna Court Assistant
C.K. YANO
JUDGE