https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1464

Tamil Enterprises Ltd v Official Receiver & Liquidator of Continental Credit Finance Ltd & another (Civil Appeal 150 of 2020) [2026] KECA 1464 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KECA 1464 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 150 of 2020 W Karanja, AO Muchelule & WK Korir, JJA July 17, 2026 Between Tamil Enterprises Limited Appellant and Official Receiver & Liquidator of Continental Credit Finance Limited 1st Respondent Kisauni Properties Limited 2nd Respondent (An appeal from the ruling of the High Court of Kenya at Nairobi (Commercial & Admiralty Division) (Makau, J.) dated 22nd November 2018 in Civil Case No 1914 of 1999) Judgment 1.A perusal of the contents of the Record of Appeal dated 30th March 2020 shows that the dispute between the parties commenced way back in 1999 when the appellant, Tamil Enterprises Limited (“Tamil”) filed Civil Suit No. 1914 of 1999 in the Commercial & Admiralty Division of the High Court at Nairobi against the 1st respondent, the Official Receiver & Liquidator of Continental Credit Finance Limited (“Official Receiver”) and the 2nd respondent, Kisauni Properties Limited (“Kisauni”). 2.The averment before the trial court was that Tamil and the Official Receiver entered an agreement through which Tamil was to purchase a portion of L.R. No. 4242/3 Kitsuru at a price of Kshs. 30,485,000 from the Official Receiver. Pursuant to the agreement, Tamil paid Kshs. 7, 621,250 to the Official Receiver, being 25% of the purchase price. However, before the transaction could be completed, an injunction was issued in H.C.C.C. No. 3462 of 1995 against the property. 3.Tamil then filed its aforesaid suit against the Official Receiver seeking a refund of the deposit of Kshs. 7, 621,250 together with interest at commercial rates. Tamil also sought an award of Kshs. 7,500,000 being money said to have been spent in drawing development plans for the property. The claim being undefended, T. Mbaluto J. (retired) on 9th March 2001 entered a default judgment in favour of Tamil against the Official Receiver for the sum of Kshs. 7,621,250 “together with interest thereon as prayed in the plaint.” He, however, rejected the claim of Kshs. 7,500,000 allegedly expended in generating development plans for the property. 4.One would think that the dispute would have ended there but it did not. Instead, the Official Receiver moved the court seeking the setting aside of the judgment, asserting that the suit was defective since the leave of the court to institute the proceedings had not been obtained as required by section 228 of the repealed Companies Act, Cap. 486. In a ruling dated 5th November 2003, the late M. Ibrahim, J. (as he then was) agreed with the Official Receiver and declared that “the judgment herein, decree and all consequential orders [are] unenforceable in law and execution thereof is hereby stayed.” 5.The Official Receiver thereafter filed a chamber summons application dated 20th April 2004 seeking a review of some aspects of the ruling of Ibrahim, J. and in a ruling prepared and signed by Ibrahim, J on 17th August 2012 but delivered on 17th October 2012 by a Judge whose name is not indicated in the ruling, the review application was allowed in the following terms:“I have carefully after hearing this application and the submissions by counsel, gone through the ruling which the 1st defendant prays to be reviewed. The first defendant argues that there is an error apparent on the face of the record. He submits that the court were to consider the oral application to amend the Chamber Summons Application dated 23.7.2001 to delete section 241(1)(a) and (c) of Cap. 486 and to replace the same with Section 228 of Cap. 486. According to the Applicant the court should not have delved into the provisions of section 241 of the Companies Act.I agree with the Applicant’s counsel that they had amended their application with leave of the Court before me. I accept that this Court invoked other provisions including Section 241 at its instance. In view of the difficulties this has created, I do hereby accept to review which I hereby do the Ruling dated 5th November 2003. None of the counsels had submitted on the other provisions. I hereby set aside the orders made in respect of sections 218, 235 and 241 of the Companies Act and stay order. With this review there is no need for an appeal which will only protract this matter. I also appreciate that no steps were taken to file the record of appeal. The result is that the Application is allowed with no orders as to costs.” 6.Despite having strenuously opposed the Official Receiver’s application for review, Tamil claimed victory and was paid some money by the Official Receiver. Tamil seems not to have been satisfied with that which it had received and went ahead to file a notice of motion dated 23rd July 2013 before the trial court seeking that the Official Receiver pays additional interest at commercial rates on the balance of the decretal amount from the date of the decree until payment in full. The application was opposed by the Official Receiver on the ground that, pursuant to the ruling of Ibrahim, J. delivered on 5th November 2003, there was no valid decree. 7.In a ruling delivered on 31st July 2014, J.B. Havelock, J. (retired) found that the ruling dated 5th November 2003 setting aside the default judgment of Mbaluto, J. was not reviewed through the ruling of 17th August 2012. In dismissing Tamil’s application with costs, Havelock, J. firmly concluded that:“In view of the ruling delivered on 5th November 2003, the Plaintiff has no Judgement or Decree capable of execution.” 8.Undeterred, Tamil filed the notice of motion dated 27th November 2017. The Official Receiver countered the motion by filing a preliminary objection dated 14th March 2018 and a cross notice of motion dated 18th June 2018. In its application, Tamil sought to review the decision of Havelock, J., delivered on 31st July 2014, in order to enable the applicant to execute the judgment and decree issued by Mbaluto, J. On his part, the Official Receiver, through the preliminary objection and cross-motion sought to stay or dismiss Tamil’s suit and to have the proceedings thereunder declared null and void ab initio for want of compliance with the provisions of section 228 of the Companies Act, which required the leave of the court to be secured before the institution of the suit. 9.J. A. Makau, J. (retired) determined the two motions and preliminary objection through a ruling delivered on 22nd November 2018. The learned Judge dismissed Tamil’s motion, holding that no ground of review under Order 45 Rule 1 of the Civil Procedure Rules had been established and that the application, having been brought 3 years and 7 months after the delivery of the decision sought to be reviewed, was brought after inordinate delay. In regard to the Official Receiver’s motion the learned Judge found that the interlocutory judgment and the final judgment dated 9th March 2001 issued by T. Mbaluto, J. (retired) were subsequently declared null and void vide the rulings of Ibrahim, J. dated 5th November 2003 and 17th August 2012 and that of Havelock, J. delivered on 31st July 2014 for failure by Tamil to comply with the provisions of section 228 of the repealed Companies Act, Cap. 486. The learned Judge proceeded to allow the Official Receiver’s motion in the following terms:“a)The plaintiff’s suit against the 1st defendant/applicant having been declared null and void ab initio is hereby dismissed in its entirety with costs to the 1st defendant/applicant.b.The plaintiff’s suit herein as against the 1st defendant/applicant be and is hereby declared null and void ab initio as found in the earlier rulings for want of mandatory leave as required under the provisions [of] section 228 of the Companies Act (chapter 486) of the Laws of Kenya (now repealed).c.That all the judgments, consequential orders and decree, purported execution in pursuance of the interlocutory judgement and final judgment pronounced in the matter, are illegal, null and void ab initio and are hereby nullified and set aside.d.The sum of Kshs. 8,558,942/40 paid mistakenly and erroneously by the 1st defendant/applicant to the plaintiff/respondent, the same stand refundable forthwith by the Plaintiff/Respondent to the 1st Defendant/Applicant with interest thereon at court rate from the date of the actual payment to the plaintiff/respondent until refund in full.e.The plaintiff/respondent be and is hereby permanently restrained from soliciting from and/or executing against the 1st defendant/applicant for any moneys under the suit.f.The 1st defendant/applicant be and is hereby set at liberty to apply for any other or further orders as may be necessary against the plaintiff/respondent for enforcement of the foregoing orders in the interest of justice.g.Costs of the suit and the application to the 1st defendant/applicant.” 10.It is the ruling of Makau, J that has given rise to this appeal. Tamil, through the memorandum of appeal dated 30th March 2020 challenged the impugned ruling on 15 grounds, which we find prudent to reproduce verbatim as follows:“i.The learned Judge erred in fact and in law in failing to consider that the Cross Notice of Motion dated 18th June, 2018 was res judicata the application dated 23rd July, 2001 by the 1st Respondent also raised substantially the same issue of setting aside the judgment of the court and was dismissed by the court vide Ruling of 5th November 2003 which Ruling has not been challenged by the 1st respondent to date.ii.The learned Judge erred in law by allowing the cross Notice of Motion dated 18th June, 2018 contrary to section 4(4) of the Limitation of Actions Act Cap 22 Laws of Kenya which stipulates that an action may not be brought upon a judgment after the end of twelve years from the date on which the judgement was delivered thus, the cross Notice of Motion was time barred, did not lie in law and was an abuse of the due process of the Honourable Court.iii.The learned Judge erred in law and in fact in failing to take cognizance of the fact that the 1st respondent in its capacity as Official Receiver & Liquidator of the 2nd respondent (sic) pursuant to Section 241(2)(a) of the repealed Companies Act Cap 486 Laws of Kenya had the power to sell L.R No 4242/3 by public auction to the Appellant and further following the sale, section 242(5) of the repealed Companies Act Cap 486 allowed the appellant to approach the court to confirm, reverse or modify the sale and make such order as it thought just without the necessity for leave and as such, there was no basis in law for holding on the 5th November, 2003 that the suit was null and void ab initio.iv.The learned Judge erred in law when he failed to take cognizance of the fact that section 228 of the Companies Act (repealed) does not apply in instances where the Official Receiver and Liquidator is the very person/entity that had entered into the sale transaction giving rise to the court case.v.The learned Judge erred in law when he failed to take cognizance of the fact that it would be unconscionable to interpret section 228 of the Companies Act (repealed) in such a way as to allow the Official Receiver and Liquidator to avoid liability for his own actions and or omissions.vi.The learned Judge erred when he failed to take into account the fact that the respondent did not have any defence to the appellant’s claim and that the 1st respondent in its capacity as an Official Receiver and the Liquidator legitimately owed the appellant Kshs 7,621,250/- which fact is not disputed as such, the appellant having acted lawfully should not be left without recourse and/or redress by the court.vii.The learned Judge failed to take into account the disclosed a reasonable cause of action that was worthy of hearing on merit. The learned Judge also failed to take into account the fact that the respondents did not have a defence that disclosed triable issues and that the 1st appellant (sic) took an inordinately long amount of time contrary to the limitation period to lodge the Cross Notice of Motion dated 18th June 2018.viii.The learned Judge erred when he failed to take into account that striking out pleadings is only resorted to as a last resort and that if at all the appellant was obligated by section 228 of the repealed Companies Act Cap 486 to obtain leave, such failure by the appellant to obtain leave was not fatal to the suit and could lawfully be cured without the respondents suffering any prejudice so as to do justice to all parties.xiThe learned Judge erred in fact and in law when he failed to take into consideration that the appellant was an innocent purchaser for value of L.R. No 4242/3 following the sale carried out by the 1st Respondent in accordance with section 241(2) of the repealed Companies Act Cap 486 and inthe circumstances, the just and fair thing was forthe superior court to confirm the sale and orderspecific performance of the sale agreement orrescind the agreement with an award of damagesto the appellant.x.The learned Judge erred in law in failing to consider section 250 of the repealed CompaniesAct cap 486 provided that where there was nocommittee of inspection then the 1st respondentbeing the Official Receiver and the Liquidator hadthe authority to do any such act or thing and give any such direction or permission withoutapplication to the court. Thus, the 1st respondentdid not require sanction of court and/or thecommittee of inspection to defend against the proceedings before the superior courtxi.The learned Judge erred in law in failing to dispense justice to the parties especially by failing to consider that the appellant’s claim was not disputed and instead accorded undue regard to technicalities contrary to the letter and spirit of Article 159(2)(d) [of the Constitution] which stipulates that justice shall be administered without undue regard to procedural technicalities.xii.The learned Judge erred in law and in fact in ordering the appellant to refund the sum of Kshs 8,558,942 to the respondent with interest without taking into account and giving effect to the undisputed fact that the said money which belongs to the appellant and is money which the appellant had paid as deposit to the respondent pursuant to the terms of the sale transaction between parties which failed purely because of the actions or omissions of the respondent.xiii.The learned Judge erred in law and in fact by not taking into account the fact that it is grave injustice for the court to order the appellant to pay back to the respondent money on which the respondent has no legitimate claim whatsoever, since the respondent by its own act/or omission had failed to perform its part of the sale agreement, hence rendering it necessary and just that the respondent should give back to the appellant the deposit which it (the respondent) had received under the botched sale transaction.xiv.The learned Judge erred in law and in fact in not taking account of the fact that it would be unconscionable and unjust enrichment for the respondent to keep the deposit paid to it under the sale transaction that had failed because the respondent had failed to keep its part of the bargain.xv.The learned Judge erred in law and in fact by giving a ruling which fails to dispense substantive justice between the parties and in effect perpetrates an injustice and punishes a victim of the Official Receiver and Liquidator’s misdeeds.” 11.Tamil proposes that if this Court finds favour with its appeal, orders be issued as follows:“a)The appeal be allowed.b.The Honourable Court be pleased to vary and/or set aside the orders given by the Superior Court on the 22nd November 2018, and in its place dismiss the 1st respondent’s cross-notice of motion dated 18th June 2018, and order the respondent to pay back to the appellant Kshs. 8,558,942.40 paid in partial settlement of the orders of 22nd November 2018.c.The Honourable Court be pleased to determine the case finally by affirming the judgment given by Justice Mbaluto on the 9th March 2001 in the Superior Court.d.Costs of the appeal and of the lower court be awarded to the appellant.e.Any other orders the Honourable Court deems just and designed to do substantive justice between the parties.f.In the alternative to prayer (c) above and without prejudice to the foregoing order a re-trial.” 12.When the appeal came up for hearing before us on 10th December 2025, learned counsel Prof. Mumma together with learned counsel Mr. Ochieng appeared for the appellant. Even though the appeal arose from a ruling on applications filed by the appellant and the 1st respondent, and learned counsel Ms. Mugo had filed submissions indicated to be for the 1st respondent alone, she told us during the hearing that she was representing both respondents. Having filed their respective written submissions, counsel sought to rely on them, accompanied by oral highlights. 13.Learned counsel for the appellant relied on submissions dated 8th August 2023 to argue the appeal. In the submissions, counsel addressed three thematic areas. First, counsel contended that section 228 of the repealed Companies Act, which restricts proceedings against a company in liquidation without court leave, was inapplicable in the circumstances of the appellant’s case. According to counsel, the main suit in this matter was not against the company or its assets, but was a personal action against the 1st respondent. Counsel maintained that it was the 1st respondent who was the contracting party in a failed sale transaction and not the company, and was therefore personally liable in the botched sale as the deposit did not form part of the company’s assets. Counsel relied on the Indian Supreme Court decision in Bansidhar Shankarlal vs. Mohd. Ibrahim & Another [1971] AIR 1292 to urge that even if leave was not granted, the same could be granted retrospectively and a decree would be enforceable in such circumstances. Counsel adverted to Halsbury’s Laws of England (4th Ed.), 1996 Reissue, Volume 7(3), page 1795, paragraph 2652 to delineate the circumstances under which the leave of the court is required, urging that the appellant did not require such leave as it was neither a creditor nor a contributory as defined under the repealed Companies Act. Learned counsel also referred to Langley Constructions vs. Wells [1969] EWCA Civ J0205-2 to underscore the importance of winding up provisions, which he argued are meant to ensure the orderly administration of assets for all creditors and not to bar distinct personal claims. 14.The second aspect of the appellant’s submissions was that an order for a refund would be unconscionable and contrary to equitable principles, as the money ordered to be refunded to the 1st respondent was the appellant’s own deposit. In this endeavour, counsel relied on the holding in Macharia Mwangi Maina & 87 Others vs. Davidson Mwangi Kagiri [2014] eKLR to urge the maxims that equity will not suffer a wrong without a remedy and also detests unjust enrichment. 15.In the third limb of the submissions, counsel argued that the cross notice of motion did not lie in law, was statute-barred and res judicata. Counsel referred to Muchanga Investments vs. Safaris Unlimited [2009] KLR 229 to urge that a cross-motion is not a procedure known in law and the application ought to have been struck out as an abuse of the court process. Relying on Menginya Salim Murgani vs. Kenya Revenue Authority [2014] eKLR and Telkom Kenya vs. John Ochanda [2014] eKLR, counsel submitted that the court stood functus officio once the judgment was entered and the decree issued, and urged us to enforce the principle of finality. Relying on Cheruiyot vs. Korir [2021] KECA 222 to reiterate the binding nature of a consent order, counsel submitted that the consent order dated 11th December 2001 that led to the release of the money ordered by the learned Judge to be refunded to the 1st respondent had not been set aside. It was also counsel’s submission that the respondent’s motion was res judicata as the issues raised therein had been raised in earlier applications before Ibrahim, J., or could have been raised at that time. Moreover, counsel contended that the claim for a refund was statute-barred pursuant to the provisions of section 4(4) of the Limitation of Actions Act, the 1st respondent’s motion having been filed over 12 years after the judgment and payment. We were therefore urged to allow the appeal. 16.In arguing for the dismissal of the appeal in its entirety, counsel for the respondents relied on submissions dated 24th October 2024. Counsel identified the central issue in the appeal to be the interpretation of section 228 of the repealed Companies Act. Counsel maintained that the appellant’s failure to obtain the mandatory leave of the court to proceed with the suit after a winding-up order was issued rendered the entire suit, including all subsequent judgments and orders, null and void. Counsel pointed out that different Judges of the High Court had previously declared the suit a nullity due to non-compliance with the provision. 17.On the merits of the ruling of the learned Judge, counsel submitted that the learned Judge was right in finding no merit in the appellant’s motion for review and was also correct in allowing the 1st respondent’s motion. According to counsel, the learned Judge was correct in holding that the appellant’s application for review had been filed after inordinate delay. As a result, counsel urged that the appeal be dismissed with costs and the impugned ruling upheld. 18.This being a first appeal, our duty as expressed under rule 31(1)(a) of the Court of Appeal Rules, 2022 was explained in the case of Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re- evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 19.Acting on our appellate mandate, we have duly reviewed the record of appeal and the submissions by counsel and concluded that the question as to whether the respondents’ cross-motion was res judicata determines this appeal. The principle of res judicata is enacted under section 7 of the Civil Procedure Act, Cap. 21, as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 20.Explanation No. 4 of section 7 of the Civil Procedure Act further states that:“Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 21.We quote the Supreme Court in extenso in Kenya Commercial Bank Limited vs. Muiri Coffee Estate Limited & Another [2016] KESC 6 (KLR), wherein the contours of the principle of res judicata were demarcated as follows:“52.Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights…54.The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.55.It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept…58.Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa vs. James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 22.Similarly, in John Florence Maritime Services Limited & Another vs. Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), the Supreme Court enumerated the ingredients of res judicata as hereunder:“For res judicata to be invoked in a civil matter the following elements must be demonstrated:a.There is a former judgment or order which was final;b.The judgment or order was on merit;c.The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd.There must be between the first and the second action identical parties, subject matter and cause of action.” 23.According to the appellant, the 1st respondent’s cross notice of motion was res judicata. Counsel urged that the prayers sought in that motion and the grounds in support thereof were similar to those earlier raised in the respondents’ chamber summons dated 23rd July 2001, and which summons was determined by a ruling dated 5th November 2003 by Ibrahim, J. One of the prayers sought by the respondents in the motion dated 18th June 2018 was that:“The plaintiff’s suit herein be declared null and void ab initio for want of the mandatory leave as required under the provisions of section 228 of the repealed Companies Act;” 24.A similar ground was raised in the 1st respondent’s application before Makau, J. as follows:“That the interlocutory judgment entered herein and the final judgment dated 9th March 2001 and delivered by Hon. Justice T. Mbaluto (retired) had no legal basis for want of leave as required under the provisions of section 228 of the repealed Companies Act.” 25.In his ruling of 5th November 2003, Ibrahim, J. at page 12 held that even though the respondents herein (who were the applicants therein) did not rely on section 228 of the Companies Act in the summons, they had invoked the provision in paragraph 16 of the supporting affidavit. The learned Judge further appreciated that counsel addressed the court extensively on the provision. The learned Judge then proceeded to render himself on the question as to whether the leave of the court was required under section 228 of the repealed Companies Act before the suit could be instituted and concluded that it was. 26.The record is absolutely clear on this. There was a clear nexus between the application that was placed before Makau, J., and Ibrahim, J.’s ruling. The subject matter was the same, the parties were unchanged, and interestingly, the issue of application of section 228 of the repealed Companies Act was not only a plausible ground of attack by the respondents in the earlier application but was actually called into play and a ruling rendered thereon by a court of competent jurisdiction. Furthermore, Havelock, J. in his ruling of 31st July 2014, found that the determination that leave was necessary under section 228 of the Companies Act was left undisturbed by Ibrahim, J.’s ruling of 17th August 2012 which determined the respondents’ application for review of aspects of the ruling dated 5th November 2003. In the circumstances, we find no difficulty in finding that indeed, the 1st respondent’s motion dated 18th June 2018 was barred by the doctrine of res judicata. The only option that was available to the learned Judge when faced with such an application was to strike it out. We therefore do not hesitate to allow the appeal to this extent. Consequently, we strike out the 1st respondent’s motion dated 18th June 2018. Having so done, there is no point in considering any other ground of appeal in respect to that motion. 27.We should conclude this appeal at this point because the appellant does not directly, in any of the fifteen grounds of appeal, fault the dismissal of its motion. However, it would be remiss of us not to comment on the dismissal of the appellant’s motion for review. An order of review is discretionary in nature. For an appellate court to interfere with the exercise of discretion by the trial court, the appellant must satisfy the parameters set down in Mbogo & Another vs. Shah [1968] EA 93, to wit, that the judge misdirected himself in some matter and, as a result, arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that, as a result, there has been injustice. The appellant has not placed anything before us to warrant our interference with the exercise of discretion by the learned Judge. It is not evident from the impugned ruling that the learned Judge misapplied the principles applicable to the review of a judgment, ruling or order. He correctly found that the threshold for review had not been met by the appellant and that the application for review had been brought after inordinate delay. Consequently, that portion of the ruling dismissing the appellant’s application for review remains intact and is not for us to disturb. 28.We also note that the appellant majorly concentrated in attacking the finding by Makau, J. that the question of the applicability of section 228 of the repealed Companies Act, Cap 486 to the case had long been determined by his colleagues, and counsel for the respondents took the bait by framing the central issue in this appeal to be whether the leave of the court was necessary under the said provision before the appellant could file the suit. With respect to counsel for the parties, the issue of the interpretation of section 228 was not available for determination in this appeal since it had been determined by Ibrahim, J. without any appeal or review. We therefore decline to consider an issue that is not properly before us. 29.In the end, this appeal partially succeeds to the extent that the 1st respondent’s motion dated 18th June 2018 was res judicata and is hereby struck out. 30.Where does our decision leave the parties? The appellant’s appeal has partially succeeded, and the 1st respondent’s motion has been set aside as sought by the appellant. It follows that all the orders issued pursuant to the 1st respondent’s motion stand vacated. The appellant sought an order directing the 1st respondent to pay back the sum of Kshs. 8,558,942.40 in affirmation of the judgment issued by Mbaluto, J. on the 9th March 2001. That prayer cannot succeed for the reasons already stated in this judgment. The appellant has also not established any grounds for the issuance of an order remitting the matter to the High Court for retrial, more so considering that the appellant has no suit to be retried. 31.In the grounds of appeal, the appellant persistently cried for substantive justice. However, the consistent finding by the High Court that the interlocutory judgment, the final judgment, the decree, and all consequential orders have no legal basis and are unenforceable has never been set aside on appeal or review. According to the appellant, a consent for the payment of Kshs. 8,558,942.40 entered between the parties before Osiemo, J., had not been set aside. The argument, in our view, is fallacious. That consent was recorded prior to the ruling of Ibrahim, J., issued on 5th November 2003, which found that the judgment, decree, and all consequential orders were null and void. The consent was therefore one of the consequential orders nullified. 32.After counsel had argued the appeal before us, we sought to understand what the Kshs. 8,558,942.40 was all about. Although Ms. Mugo dropped off the call before fully explaining what the amount represented, she indicated that the appellant had been refunded the deposit. Prof. Mumma confirmed that the deposit of Kshs. 7,621,250 had indeed been refunded to the appellant and explained that the Kshs. 8,558,942.40 was part of the interest of Kshs. 27, 000,000 awarded to the appellant by Mbaluto, J. As such, the appellant cannot therefore be heard to say that it would be unconscionable and amount to unjust enrichment for the 1st respondent to retain the Kshs. 8,558,942.40, its deposit having been refunded. 33.Having partially allowed the appeal by striking out the 1st respondent’s motion, and having upheld the dismissal of the appellant’s motion, it follows that the parties are left in the position in which they were prior to the ruling delivered by Makau, J. on 22nd November 2018. That position is that the suit filed by the appellant, which was seeking enforcement of the contract or the refund of the deposit, was found by the High Court to be unsustainable. There is therefore no judgment or decree that can be founded on that suit. Likewise, the sum of Kshs. 8,558,942.40, being part of the interest awarded on the deposit through the void judgment, cannot stand. To put it plainly, the money belongs to the 1st respondent because there is no legal basis upon which the appellant can retain it. The appellant’s partial success in this appeal is therefore nothing but a Pyrrhic victory. 34.On the issue of costs, considering the outcome of the appeal and in order to bring closure to the parties in respect to this long-running dispute, we direct them to bear their own costs of this appeal plus the costs of the High Court, limited to the proceedings that gave rise to the ruling that resulted in this appeal. 35.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY 2026.W. KARANJA.......................................JUDGE OF APPEALA. O. MUCHELULE........................................JUDGE OF APPEALW. KORIR...................................... JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar