Manjula Zaverchand Shah v Gulf African Bank Limited & 2 others [2015] eKLR

Key Facts

Issues

• The court examined whether the plaintiff, Manjula Shah, was in Kenya when she filed the 25th November 2014 motion. Evidence showed she used an unauthenticated passport number and was last in Kenya in October 2013, raising claims of perjury and fraud on the court. This invalidated the affidavits and challenged the court's jurisdiction.
• The plaintiff objected that the court lacked jurisdiction to review the ruling after a Notice of Appeal was filed. The court determined that a notice of appeal alone does not bar review until a formal appeal is instituted under the Court of Appeal Rules, allowing the review application to proceed.
• The 3rd Defendant argued the court's ruling nullifying the sale ignored sections 99 and 102(2) of the Land Act, which protect bona fide purchasers. The court found no apparent error on the face of the record, as the judge had considered these provisions and her interpretation was within her discretion, making it a matter for appeal, not review.

Holdings

• The court dismissed the second ground for review, which alleged an error in the application of Sections 99 and 102(2) of the Land Act. It clarified that the Hon. Judge had considered these provisions in her ruling and that misinterpretation of the law does not constitute an error apparent on the face of the record. The court held that such disputes must be addressed through appeal, not review, and found no self-evident error to warrant intervention.
• The court allowed the 3rd Defendant's application for review on the ground that new and important evidence was discovered, showing the plaintiff was not in Kenya when the originating summons and notice of motion were filed. The court found that the plaintiff's affidavits were sworn with false information, violating Section 11 of the Oaths and Statutory Declarations Act. As a result, the ruling dated 30th July 2015 was set aside, the plaintiff's affidavits were struck out, and the conditional injunction order of 11th December 2014 was reinstated pending further orders. The court emphasized that judgments obtained by fraud on the court are nullities.

Remedies

• Prayer No. 5.4 of the Notice of Motion (to rehear/reconsider the plaintiff's injunction motion) is declined as it no longer lies after the prior orders are set aside.
• The Ruling of the court dated 30th July 2015 is hereby reviewed and the orders flowing therefrom set aside; this includes overturning the prior decision that nullified the sale and invalidating the statutory notices.
• The impugned affidavits of Manjula Zaverchand Shah filed in support of the Originating Summons and Notice of Motion dated 25th November 2014 are struck out.
• The terms of the conditional injunction issued on 11th December 2014 are reinstated pending further orders of the court.
• The costs of the application are to be in the cause, meaning the parties will bear them as part of the proceedings.

Legal Principles

• The court evaluated the application for review under the doctrine of judicial review, specifically addressing whether there was a clear and substantial error of law on the face of the record. While the first ground (new evidence) warranted review, the second ground (interpretation of the Land Act) was dismissed as not constituting an apparent error requiring judicial review.
• The court considered the principle of res judicata in determining that the Plaintiff's husband was already barred from seeking an injunction against the Bank due to prior judicial decisions. This principle was central to the argument that the Originating Summons filed by the Plaintiff was a misuse of the court process.

Precedent Name

• Shirika La Kusaidia Watoto wa Kenya & Another vs. Rhodah Rop and 4 Others
• National Bank of Kenya Ltd versus Njau
• Yani Haryanto vs E.D & F. Man. (Sugar) Limited
• Muyodi -Vs- Industrial & Commercial Development Corporation & Another
• Edward Odembo Ajulu and Another vs. Wanga Oniangi
• Equity Bank Ltd -vs- West Link Mbo Ltd
• Republic Vs Anti-Counterfeit Agency & 2 others Ex-parte Surgipharm Limited

Cited Statute

• Oaths and Statutory Declarations Act, Chapter 15
• Land Act, 2012
• Civil Procedure Act

Judge Name

• Olga Sewe
• Jacqueline Kamau

Passage Text

• In the result, having found that the 3rd Defendant has demonstrated that there has since been discovery of new and important evidence which, after due diligence, was not within its knowledge or could not be produced at the time the application dated 25th November 2014 was heard and the decision of 30th July 2015 made, I would allow the application for review on that particular ground...
• 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 is trite that a judgement or order obtained by playing fraud on the court is a nullity and should not be countenanced. Accordingly, the court is satisfied that a new and important matter has arisen in connection with the application dated 25th November 2014 that goes to the core substance of the court's Ruling dated 30th July 2015 as to warrant a review thereof.