Republic v Attorney General & another; Terrace Hotel Limited (Exparte Applicant) [2023] KEHC 26554 (KLR)

Republic v Attorney General & another; Terrace Hotel Limited (Exparte Applicant) (Judicial Review Miscellaneous Application E1110 of 2020) [2023] KEHC 26554 (KLR) (Judicial Review) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26554 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E1110 of 2020

JM Chigiti, J

December 14, 2023

Between

Republic

Applicant

and

The Honourable Attorney General

1st Respondent

The Registrar of Companies

2nd Respondent

and

Terrace Hotel Limited

Exparte Applicant

Ruling

1. The application before this Court is dated 28th October ,2020 and it seeks the following orders;1. That this matter be certified as urgent and be heard Ex parte and service be dispensed with in the first instance.2. That this Honourable Court be pleased to set aside the orders of the court “marking this matter as settled case closed” or any such orders emanating from the ruling delivered on the 20th September 2022 be varied or set aside and so reinstate the suit for hearing on merit.3. That the costs of this application be provided for.

2. The application is supported by a Supporting Affidavit sworn by Wangalwa Oundo on 28th October 2022.

3. The Ex parte Applicant’s case is that the matter was scheduled before the Court on 20th September,2022 where Mr. Wangalwa is said to have been personally logged into the online portal but when the matter was called out his call dropped and he was unable to participate in the said proceedings.

4. The Deponent avers that the instant matter is highly contentious and that it is only prudent that the same be heard on merit to forestall any unexpected outcome.

5. There is no response on record nor did the parties file any written submission.

Analysis and Determination 6. I have considered the case adduced by the Applicant and one issue for determination arises and that is whether the Applicant has made out a case for the setting aside of the Court’s orders of 20th September 2022 marking the file as closed for reasons that the parties had not interest in the matter.

7. This position I note was occasioned by the Parties failing to on numerous occasions appear before the Court prompting the said outcome. I note from the record that prior to the said decision by the Court (Ndung’u J) the parties had appeared before the Court on 17th November,2021 on which date the Court observed that there appeared to be an irregularity in the matter as there were two similar applications that had been filed by the Applicant.

8. The Court directed the Applicant to consider its position and revert on the way forward during a mention that was slated for 26th January, 2022. When the parties appeared before Ngaah J on the said date Mr. Obado who was holding brief for Mr. Wangalwa for the Applicant indicated that they had not been able to file their submissions as Mr. Wangalwa was unwell and therefore they sought a further 30 days. The Court granted them the 30 days and directed that the matter be mentioned before Ndung’u J on 28th February,2022.

9. However, the parties failed to appear before the said date and on subsequent dates thereafter that is on 11th May,2022,23rd January,2022 and even on 20th September,2022 when the court marked the file as closed. This was a waste of judicial time and the Court rightly marked the file as closed.

10. The law on review/setting aside of a court’s order is now settled. It is also trite that the High Court has power to review its own decisions, however it must be emphasized that such power must be exercised within the framework of Section 80 of Civil Procedure Act and Order 45 Rule 1.

11. Section 80 of the Civil Procedure Act provides thus: -“80. Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

12. Similarly, Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -(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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”

13. The above Rule summarizes the instances when a court can review or set aside its Orders and these are in a case where the Applicant discovers a 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, where there is a mistake or error apparent on the face of the record, or for any other sufficient reason.

14. In the case before this Court the Ex parte Applicant seeks for this Court to set aside the order of 20th September,2022 issued by Justice Ndung’u on grounds that the same is highly contentious and that it is only prudent that it be heard on merit to forestall any unexpected outcome.

15. The Court is convinced that the Applicant’s reason forms sufficient reason for the grant of the orders sought.

16. The Constitution under Article 159(2)(d) provides as follows;“justice shall be administered without undue regard to procedural technicalities.”

17. This Court is minded to grant the Applicant the orders it seeks in light of the above Article and in furtherance of the access to justice conversation as stipulated under Article 48 of the Constitution.

18. The Court is cognizant of the fact that it is Justice Ndung’u who issued the order and that the application for review is before me however Judge Ndung’u is no longer in the division and as such pursuant to Order 45 Rule 2(2) this court seized with the jurisdiction to grant the orders sought.

19. Order 45 Rule 2(2) provides as follows;“2. To whom applications for review may be made [Order 45 rule 2]2)If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.Order:I make the following orders:1. The Ex parte Applicant’s Notice of Motion dated 28th October,2020 is hereby allowed.2. The Ex parte Applicant shall pay to the Respondents the costs of the Application.3. The Ex parte Applicant shall serve the application for leave within three (3) days of today’s date.4. The Respondents are at liberty to respondent to the application within fourteen (14) days.5. The Applicant shall file and serve its written submissions within seven (7) days of the date of service of the response.6. The Respondent shall be at liberty to file and serve its written submissions within seven (7) days of service.7. The matter shall be mentioned before this Court on 17th January, 2024 to confirm compliance and with a view of fixing a Ruling date.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER 2023………………………………J. CHIGITI (SC)JUDGE