https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12936

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND ADMIRALTY DIVISION** **HCCOMM NO. E034 OF 2024** **TRANSFLEET LIMITED………………1ST PLAINTIFF/RESPONDENT** **VERSUS** **MIDDLE EAST BANK** **KENYA LIMITED…………….……….1ST DEFENDANT/RESPONDENT** **GARAM INVESTMENTS……………4TH DEFENDANT/RESPONDENT** **ELIZABETH ONG’ARE…………………………………..3RD DEFENDANT** **THE CHIEF LAND REGISTRAR -** **NAIROBI……………………………….5TH DEFENDANT/RESPONDENT** **JAMES GITAU SINGH………………6TH DEFENDANT/RESPONDENT** **RULING** 1. This ruling relates to two applications filed by the 6th and the 3rd Defendants respectively. The 6th Defendant's application is dated 30th October 2025, and the 3rd Defendant’s application is dated 16th February 2026. **Application dated 30th October 2025** 1. The 6th Defendant’s application is brought under Section 2, Rule 15 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. It seeks to strike out the 6th Defendant from the suit and the costs of both the suit and the application be borne by the Plaintiff’s advocate and awarded to the 6th Defendant. 2. The application is premised on the grounds that the suit discloses no reasonable cause against the 6th Defendant and the same is frivolous, vexatious and an abuse of the court process. 3. The application is supported by the affidavit of James Gitau Singh who avers that Milimani ELC No. 018 of 2024, which sought orders to restrain the sale of Property L.R no. 214/293, Orchid, was dismissed by the court on 18th October 2024, that this court has no jurisdiction to entertain or determine disputes as to ownership and title to land, including revocation of registered interests. He avers that the suit property has since been lawfully transferred to him. The Plaintiff bears no proprietary interest in the land and is a stranger to the 6th Defendant. 4. The application is opposed through the Plaintiff’s grounds of opposition dated 9th March 2026 on the grounds that the issue of the 6th Defendant's participation as a party to the suit is *res judicata* having been conclusively determined by this court by its ruling dated 31st July 2025. The reliefs sought by the Plaintiff directly affect the 6th Defendant as a purchaser of the suit property, and the striking out of the 6th Defendant from the suit would render any eventual decree unenforceable or prejudicial to the interests of justice, and the removal would lead to multiplicity of suits. **Application dated 16th February 2026** 1. This application is brought under Section 80 of the Civil Procedure Act. It seeks: 2. *to review or set aside the court orders of 29th January 2026.* 3. *upon review, the Chamber Summons dated 6th October 2025 challenging the taxation ruling delivered on 22nd September 2025 be struck out for want of jurisdiction, having been filed out of time.* 4. *costs of the application be awarded to the 3rd Defendant*. 5. The application is premised on the grounds that there is an error apparent on the face of the record on the ruling dated 29th January 2026, on the court’s failure to consider the issue that the reference was filed outside the 14 days against paragraph 11 of the Advocates Remuneration Order. The court inadvertently assumed jurisdiction which did not exist by allowing a reference filed out of time. 6. The Plaintiff opposes the application on the grounds of opposition dated 25th February 2026, on the grounds that the application is irredeemably bad in law and is defective. The grounds raised for review can only be canvassed through an appeal, not through review. The references were filed within 14 days, in strict compliance with the statutory timelines prescribed under Rule 11 of the Advocates' Remuneration Order. 7. The applications were heard by way of written submissions. **Analysis and determination** 1. Having considered the applications, affidavits, grounds, and written submissions, the following issues arise for determination: 2. *Whether the 6th Defendant should be struck out of the suit* 3. *Whether the applicant has met the threshold for review of the ruling dated 29th January 2026.* *Whether the 6th Defendant should be struck out of the suit.* 1. The application seeks the striking out of the 6th Defendant from the suit on the grounds that the plaint discloses no reasonable cause of action against him and that his continued participation in the proceedings is frivolous, vexatious and an abuse of the court process. 2. **Order 2 Rule 15(1) of the Civil Procedure Rules** provides as follows: * + - 1. **At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that -** **it discloses no reasonable cause of action or defence in law; or** **it is scandalous, frivolous or vexatious; or** **it may prejudice, embarrass or delay the fair trial of the action; or** **it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.** 1. The Plaintiff has raised the doctrine of ***res judicata***. The principle of *res judicata* is well-grounded in law and aims to prevent multiple lawsuits on the same issues. 2. This Court vide its ruling dated 31st July 2025, when deciding the application for joinder of the 4th, 5th and 6th Defendants, found that the 6th Defendant was a necessary party to the suit as he was a purchaser of the suit property. An order that may be issued by this court may affect the 6th Defendant. 3. The Court therefore, conclusively determined the issue of the 6th Defendant's participation as a party to the suit. That determination stands and binds the parties. The 6th Defendant cannot be permitted to re-litigate a matter already settled by this court. 4. The objection that the Plaintiff bears no proprietary interest in the land and is a stranger to the 6th Defendant is a matter of evidence that can only be properly determined at trial. It is not a ground upon which a pleading may be struck out summarily, as it requires the court to evaluate contested facts. 5. I am not persuaded that the suit against the 6th Defendant is so hopeless that it plainly and obviously discloses no reasonable cause of action. The Plaintiff's claim that the reliefs sought directly affect the 6th Defendant as a purchaser, and that striking him out would render any decree unenforceable, raises triable issues that ought to be ventilated at a full hearing. 6. Accordingly, the 6th Defendant's application dated 30th October 2025 **fails** and is hereby dismissed with costs. *Whether the threshold for review of the ruling dated 29th January 2026 has been met* 1. It is contended that there is an **error apparent on the face of the record** in the ruling dated 29th January 2026, on the court's failure to consider the issue that the reference was filed outside the 14 days prescribed under **Rule 11 of the Advocates Remuneration Order**. The 3rd Defendant contends that the court inadvertently assumed jurisdiction which did not exist by allowing a reference filed out of time. 2. **Section 80 of the Civil Procedure Act** provides the substantive power of review. It states: **Any person who considers himself aggrieved:** 1. **by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or** 2. **by a decree or order from which no appeal is allowed by this Act;** **May apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.** 1. **Order 45 Rule 1 of the Civil Procedure Rules** further provides that review may be sought upon: 1. ***Discovery of new and important matter or evidence;*** 2. ***A mistake or error apparent on the face of the record; or*** 3. ***For any other sufficient reason*** 2. The threshold for establishing an "error apparent on the face of the record" is high. In **Friends Church (Quakers) Nairobi Yearly Meeting v Onsongo & Co Advocates [2021] KEHC 1304 (KLR)**, the court held: **“An error apparent on the face of the record is, first, an error; and second, it must be that about which there cannot be two different opinions. It is the kind of mistake that anybody looking at the record will readily say 'that is an error’.”** 1. The 3rd Defendant's contention that the reference was filed out of time is one that requires examination of factual timelines and legal interpretation. It is not a self-evident error. Moreover, the Plaintiff contends that the references were filed within the statutory timelines. This is a contested factual issue that cannot be resolved on review of an application. 2. A review lies only for correction of an apparent error or omission and not to enable a court to rehear or reconsider its own decision. 3. In **National Bank of Kenya Limited v Ndungu Njau [1997] KECA 389 (KLR),** the court held: ***“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”*** 1. The 3rd Defendant is effectively inviting this court to sit on appeal against its own decision, which is impermissible. This court is therefore not persuaded that the Applicant has established the threshold for a review. 2. Accordingly, the 3rd Defendant's application dated 16th February 2026 **lacks merit** and is hereby **dismissed** with costs to the Plaintiff. **Final Orders** 1. For the reasons set out above, I make the following orders: * + 1. ***The 6th Defendant's application dated 30th October 2025******is hereby dismissed with costs to the Plaintiff.*** 2. ***The 3rd Defendant's application dated 16th February 2026******is hereby dismissed with Costs to the Plaintiff.*** It is so ordered. **RULING** delivered virtually, dated and signed at **NAIROBI** This **13th** day of **August** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Ms. Kaunda h/b for Mr. Magare* for Plaintiff *Mr. Esmael h/b for Mr. Ochieng, SC* for 2nd Defendant *Mr. Kimani Kiragu, SC & Mr. Amwayi* for 3rd Defendant *Mr. Chemwoiwa* for 6th Defendant Court Assistant*: Lispa*