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CAO v AOM (Matrimonial Cause E046 of 2022) [2025] KEHC 5352 (KLR) (Family) (2 May 2025) (Ruling)

This judgment has been anonymised to protect personal information in compliance with the law.
CAO v AOM (Matrimonial Cause E046 of 2022) [2025] KEHC 5352 (KLR) (Family) (2 May 2025) (Ruling)
Citation
CAO v AOM [2025] KEHC 5352 (KLR)
Media Neutral Citation
[2025] KEHC 5352 (KLR)
Court
High Court
Court station
High Court at Nairobi (Milimani Law Courts)
Outcome
Allowed
Case number
Matrimonial Cause E046 of 2022
Attorneys
Judges
H Namisi
Judgment date
2 May 2025
Language
English
Type
Judgment
Collections
Date published
05 May 2025
Case action
Ruling
Court division
Family
Filing county
Nairobi
Order
For the foregoing reasons, I allow the Application dated 6 June 2024 and make no orders as to costs.
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1.The Applicant and Respondent got married on 18 April 2009. Their marriage was dissolved vide Decree Nisi dated 4 June 2021 issued in Cause No E1338 of 2020.
2.Prior to the present Application, the Applicant had filed Notice of Motion dated 28 June 2022 seeking, inter alia, a temporary injunction restraining the Defendant/Respondent either by himself or his agents from selling, leasing, charging, mortgaging, encumbering, alienating, disposing off or transferring to third parties motor vehicle registration number XXX XXXX, Mazda Demio and House No X located in X Court, Baraka Estate in Embakasi, Nairobi. It was the Applicant’s case that during the subsistence of their marriage, she solely acquired the subject motor vehicle, which was registered in the names of both parties.
3.On the other hand, the Respondent averred that he was a stranger to the subject motor vehicle, which was actually registered in the names of third parties, not party to the present suit. Further, the Respondent confirmed that the vehicle was in the possession of the Applicant.
4.In its Ruling, the Court observed that at this interlocutory stage, the Court cannot make a determination as to whether the properties in question constitute matrimonial property. Such a determination would have to await the hearing of the main suit, where parties would be entitled to adduce evidence in support of their respective positions. The only issue to be determined at the interlocutory stage was whether the Applicant had established a prima facie case to warrant the orders being sought.
5.In determining the issue, Hon. Maureen Odero, LJ, observed that the documents availed indicated that the motor vehicle was registered in the name of Lillian Ndanu Kioko and National Industrial Credit Bank. Since the motor vehicle was not registered to either party and the registered owner had not been invited to make any representation thereon, the Court would not make any orders in respect of the motor vehicle. By its Ruling dated 13 October 2023, the Court dismissed the Application.
6.The present Application dated 6 June 2024 seeks the following orders:i.(spent);ii.(spent);iii.(Spent);iv.That the Court be pleased to review and set aside the Ruling/Order of this Court given on 13 October 2023 dismissing the Plaintiff/Applicant’s application dated 28 June 2022 and substitute the same with an order restraining the Defendant/Respondent either by himself or his agents from selling, leasing, charging, encumbering, alienating, disposing off and or transferring to third Parties motor vehicle registration number XXX XXXX, Mazda Demio pending the hearing and determination of this suit;v.That pending hearing and determination of this suit, a temporary order of injunction be and is hereby issued restraining the Defendant/Respondent whether by himself or his agents from damaging, alienating, selling, leasing, charging, encumbering, alienating, disposing off and or transferring to third parties or in any way interfering with the Plaintiff’s quiet possession and enjoyment of the motor vehicle registration number XXX XXXX, Mazda Demio;
7.The Application is supported by an Affidavit sworn by the Applicant and premised on the following grounds:i.The Applicant has discovered some new and important evidence which was not within her knowledge or could not be produced even after the exercise of due diligence before or at the time the ruling/Order of Court of 13 October /2023 was made;ii.Subsequent to the Plaintiff’s Application dated 28 June 2022 and the ruling/Order of Court given on 13 October 2023, the Plaintiff/Applicant discovered that the Defendant herein lodged and registered a transfer of the suit vehicle registration number XXX XXXX Mazda Demio in the Defendant's name;iii)The Respondent who had carried out or was undertaking the said registration of the Motor Vehicle to his name subsequent to the Plaintiffs Application and impugned ruling wilfully withheld information about the ownership particulars of the suit motor vehicle from Court and the Applicant at all material times only for the Applicant to learn the same in May 2024 while pursuing a criminal complaint against the Respondent for malicious damage of the suit vehicle;iv.There is also an apparent error and mistake on record in the said ruling/Order of Court given on 13 October, 2023 occasioned by the Defendant's non-disclosure of material facts as the impugned decision is based on the assumption that the suit motor vehicle was registered in the name of 3rd Party not a party to the instant matrimonial cause.;v.In the said ruling/Order the Court ignored and/or inadvertently failed to address its mind on the fact that both parties confirmed that the suit motor vehicle had been purchased from the third party and that the Defendant had conceded to the fact that he had the means to transfer the suit motor vehicle to the Applicant;vi.The Respondent has subsequently on several occasions tried to forcefully take the motor vehicle from the Applicant's home by employing violence, intimidation, harassment and other crude means despite feigning a lack of interest in the suit motor vehicle during the pendency of the suit;vii)The Applicant continues to suffer great harassment, humiliation and cruelty, both mental and physical from the Respondent ever since this Honourable Court rendered the ruling/Order of 13 October, 2023.viii)The foregoing constitutes sufficient reasons to review the ruling/Order of Court given on 13 October, 2023 to the extent that the court should have granted the temporary relief sought restraining the Respondent from interfering with the Applicant's possession of the motor vehicle and or the, transfer and registration of the suit motor vehicle.
8.In the Supporting Affidavit, the Applicant averred that on or about 29 April 2024 at around 1900 hours, the Defendant, in the company of several unidentified men armed with crude weapons, invaded the Applicant’s residence in an attempt to forcefully take away the subject motor vehicle. Instead, the motor vehicle was maliciously damaged. The Applicant reported the matter to the Embakasi Police under OB No 64/28/04/24 and the Defendant/Respondent was subsequently charged at Makadara Law Courts in Criminal Case No E2748 of 2024 for assault causing grievous harm. There was no mention of the damage to the motor vehicle.
9.It is the Applicant’s case that when she tried to follow up on the issue of malicious damage to property, her Advocates presented to her a copy of search from the Registrar of Motor Vehicles, which revealed that the motor vehicle was registered in the name of the Defendant/Respondent. It is the Applicant’s submission that she only learnt of this development in June 2024 whilst pursuing the criminal complaint against the Defendant/Respondent. The Defendant/Respondent never disclosed to her that he was pursuing registration of a transfer of the motor vehicle to himself.
10.The Defendant/Respondent filed a Replying Affidavit in which he contends that although the motor vehicle was initially registered in the name of a third party, the transfer process was initiated on 5 September 2019. The Respondent submits that there is no new discovery by the Applicant as alleged because the Applicant was well aware that the transfer process had been initiated at the time of their marriage and she cannot feign ignorance.
11.It is the Respondent’s averment that the process of transferring the motor vehicle was marred with bureaucracy and was finally completed on 1 December 2022.
12.The Application was canvassed by way of written submissions.
Analysis and Determination
13.I have keenly read the Application, Affidavits and submissions filed herein. Further, I have taken time to peruse the record, and in particular the Application dated 28 June 2022 and the Respondent’s response thereto.
14.The Application herein seeks a review of the Order of 13 October 2023 on the basis of discovery of new information which was not in the Applicant’s knowledge at the time of the Ruling. The Application is brought under sections 1A, 1B, 3, 3A, 63(e) and 80 of the Civil Procedure Act as well as order 45 Rule 1 of the Civil Procedure Rules.
15.Section 80 of the Civil Procedure Act provides as follows: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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
16.Order 45 Rule 1 of the Civil Procedure Rules, 2010 further provides for review in the following manner: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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.
17.It then follows that Order 45 provides for three circumstances under which an order for review can be made. The applicant must demonstrate to the court that there has been 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. Secondly, the applicant must demonstrate to the court that there has some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other sufficient reason.
18.Courts have severally dealt with the issue of review. The Supreme Court in Application No 8 of 2017, Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, quoted with approval the findings of the East Africa Court of Appeal in Mbogo & another v Shah [1968] EA, upon establishing the following principles: -Consequently, drawing from the case law above, particularly Mbogo and Another v Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows:i.A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this Court.ii.Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;iii.An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.iv.In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.V .During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.vi.The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:a.as a result, a wrong decision was arrived at; orb.it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.
19.It is clear that the prayer for review in the instant application is premised on the first condition provided in Order 45 Rule 1. In the case of Turbo Highway Eldoret Limited v Synergy Industrial Credit Limited [2016]eKLR Hon. Sewe J. cited the case of Rose Kaiza v Angelo Mpanjuiza [2009]eKLR, where the Court of Appeal considered an application for review on the ground of new evidence and held that:-“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
20.It is, therefore, clear that the discovery ought to be of new and important evidence which after due diligence was not within the knowledge of the party or could not have been produced when the decree was being made.
21.In the case of D. J. Lowe & Company Ltd v Bonquo Indosuez, Nairobi Civil Application No 217 of 1998, the Court of Appeal sounded a caution in such applications and stated that:-“Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”
22.I have taken the liberty of perusing the Respondent’s Affidavit dated 24 August 2022 filed in response to the Applicant’s application dated 28 June 2022. The Respondent confirmed that the subject motor vehicle was purchased in July 2019, but was still registered in the name of Lillian Ndanu & NIC Bank, the previous owners. There was no mention whatsoever that the registration of transfer of ownership had commenced and was in progress. The only other averment in respect of the motor vehicle was that the same was in the possession of the Plaintiff/Applicant, which she used for purposes of school drop-offs and pick-ups. Further, at paragraph 8 of the Affidavit, the Respondent deponed that he “is more than willing and ready to have the transfer effected in the names of the Applicant for the sole purposes of enabling her ferry the children to school with ease.”
23.The averments by the Respondent in the current application can only be termed as duplicitous. It is evident that there was some concealment of facts and/or statement of misleading information at the time of the previous Application. The Respondent was not candid enough to inform the Court then of the ongoing registration of transfer, which he now claims commenced in 2019. Even the averment that he was willing to transfer the motor vehicle to the name of the Applicant, and then proceeded to secure registration of transfer to his name, is a clear demonstration of his lack of candour.
24.Based on the foregoing, it would seem that the Applicant only came to learn of this new development when she attempted to pursue the complaint for malicious damage to property.
25.The question that I must now ask myself is whether the Judge would have decided differently had this information about the pending transfer been presented to the Court. Whereas I surely do not possess a crystal ball to predict the possible outcome of that application in light of the current information, it is my considered view that the Applicant has successfully argued her Application to warrant an interlocutory injunction based on the principles espoused in the case of Giella v Cassman Brown [1973] EA.
26.For the foregoing reasons, I allow the Application dated 6 June 2024 and make no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 2 DAY OF MAY 2025HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:.Kinyanjui h/b Litoro ..........for the Applicant.N/A.............for the RespondentLibertine Achieng..... Court Assistant
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