Meridian Acceptances Limited v Muchungu & 4 others (Civil Suit E743 of 2021) [2025] KEHC 15411 (KLR) (Commercial and Tax) (30 October 2025) (Ruling)
Neutral citation:
[2025] KEHC 15411 (KLR)
Republic of Kenya
Civil Suit E743 of 2021
PM Mulwa, J
October 30, 2025
Between
Meridian Acceptances Limited
Plaintiff
and
James Ndwiga Muchungu
1st Defendant
Lisa Mumbi Ndwigah
2nd Defendant
Ian Nyaga Ndwigah
3rd Defendant
Judita Warue Ndwiga
4th Defendant
Trevor Sawaya Ndwiga
5th Defendant
Ruling
1.This ruling is in respect of the Notice of Motion dated 22nd July 2025.
2.The Application is premised on the grounds on the face of it and is supported by the affidavit of Bernard Odote sworn on 22nd July 2025.
3.The Respondents oppose the Application vide a replying affidavit of James Ndwiga sworn on 28th July 2025.
4.The Application was canvassed by way of written submissions which parties duly filed.
5.Having considered the Application, the response and the parties’ respective submissions, the sole issue that falls for this Court’s determination is whether the application is merited.
6.I shall first address the Respondent’s objection to the competence of the Supporting Affidavit sworn by Benard Odote. The Respondents contend that the deponent is a stranger to these proceedings, having identified himself as a director of House of Procurement Ltd without providing a resolution or letter of authority to demonstrate his capacity to swear an affidavit on behalf of the Plaintiff company.
7.Upon perusal of the record, I note that a CR12 produced indicates House of Procurement Ltd as a director/shareholder of the Plaintiff. The legal position on this issue was aptly stated in the case of Makupa Transit Shade Limited & Another vs Kenya Ports Authority & Another [2015] eKLR the Court stated thus;
8.Guided by the above, I find that where a complaint is raised regarding a deponent’s authority, the burden lies on the disputing party to demonstrate, by evidence, that the deponent lacked the requisite authority. A bare assertion is insufficient to discharge this burden. In the present case, the Respondent has not provided such evidence. Consequently, the objection fails, and the Supporting Affidavit is deemed properly on record.
9.This then brings me to Section 80 of the Civil Procedure Act Cap 21 which provides that:
10.Order 45 Rule 1 of the Civil Procedure Rules provides:
11.It is trite law that for an application for review to succeed, the applicant must satisfy the Court as to the existence of any one of the above grounds. In addition, the application must be filed without unreasonable delay.
12.The Applicant seeks a review and variation of the orders issued by this Court on 10th July 2025, principally to extend the time for compliance by sixty (60) days. The reason advanced is that the timelines granted are insufficient.
13.Upon careful evaluation, I find that the Applicant has not met the threshold for review under Order 45. The Application does not allege the discovery of new evidence, nor does it point to any error apparent on the face of the record. The Applicant’s assertion of logistical difficulty does not constitute a sufficient reason for reviewing a lawfully issued order. A party’s subsequent challenge in complying with a court order is not, by itself, a ground for review. The proper course of action would have been to seek an extension of time promptly, and not to seek a review of the order itself.
14.Even if the Application were correctly presented as a request for an extension of time, the Applicant's argument remains unpersuasive.
15.The Applicant contends that the retrieval process is difficult. However, the documents in question are not obscure or ancient artifacts. They are fundamental financial and statutory records that a company is mandated by law to maintain and have readily available at its registered office (as stipulated in Sections 628, 630, 317 and 318 of the Companies Act, 2015).
16.The Respondent rightfully questions why a company would need 60 days to produce its own essential corporate records, as it raises concerns about the company's governance and credibility. The Applicant's claim, without any detailed explanation of the specific logistical challenges, lacks credibility.
17.Regarding the Joint Inspector, the correspondence between the advocates reveals that the Respondent acted in good faith by promptly proposing two qualified and independent CPA firms. The Applicant, however, rejected both proposals, the first on the basis of prior litigation, and the second by insisting on a Tier 1 audit firm and demanding that the Respondent first develop Terms of Reference. This conduct appears dilatory and contrary to the Court’s directive for the parties to agree on an inspector in a timely manner. The failure to reach an agreement rest squarely with the Applicant.
18.The overriding objective of this Court, as enshrined in Sections 1A and 1B of the Civil Procedure Act, is to facilitate the just, expeditious, and efficient resolution of disputes. The present Application, which lacks merit and appears to be a tactic to delay compliance, does not further this objective.
19.Consequently, the Notice of Motion dated 22nd July 2025 is hereby dismissed in its entirety with costs to the Respondents.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBITHIS 30TH DAY OF OCTOBER 2025.P.M. MULWAJUDGEIn the presence of:Ms. Obura h/b for Mr. Seko for Plaintiff/ApplicantMr. Kimani for 2nd Defendant/RespondentCourt Assistant: Carlos