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

Key Facts

Issues

• The second issue involves the 3rd Defendant's argument that the court's 30 July 2015 ruling, which nullified the auction sale, ignored protections under sections 99 and 102(2) of the Land Act. These provisions safeguard innocent purchasers for value. The 3rd Defendant contended the court erred in declaring the sale a nullity, as the auction was valid under the Land Act. However, the court found the 3rd Defendant's argument targeted the judge's legal interpretation, not an apparent error on the record. The court emphasized that misinterpretation of law does not justify a review and that appeals, not reviews, are the proper remedy for such disputes.
• The first issue centers on whether the Plaintiff, Manjula Zaverchand Shah, was in Kenya at the time of filing the 2014 Originating Summons and Notice of Motion. The 3rd Defendant presented evidence from the Immigration Department indicating the Plaintiff had last entered Kenya on 16 October 2013 and left on 28 October 2013, suggesting she could not have filed the motion on 25 November 2014. The court found this new evidence material, as it raised concerns about perjury in the affidavits sworn in Nairobi on the filing date, which conflicted with the passport records. The court concluded this discovery warranted a review of the prior ruling.

Holdings

• The court rejected the second ground for review, finding no clear or substantial error of law apparent on the face of the record. The application for review on the basis of alleged misinterpretation of Sections 99 and 102(2) of the Land Act was dismissed, as the court determined the Hon. Judge had applied the relevant law and the error, if any, was not jurisdictional but a matter of legal interpretation requiring appeal.
• The court allowed the application for review on the ground of discovery of new and important evidence regarding the Plaintiff's absence in Kenya at the time of filing the Originating Summons and Notice of Motion. This new evidence, based on Immigration records, demonstrated the Plaintiff was not in Kenya on 25th November 2014, undermining the validity of her affidavits and the court's jurisdiction. The ruling of 30th July 2015 was reviewed and set aside, with the conditional injunction reinstated.

Remedies

• Prayer No. 5.4 of the Notice of Motion was declined as it would not lie in view of the previous orders
• The terms of the conditional injunction issued on 11th December 2014 were reinstated with effect from 1st August 2015 pending further orders
• The costs of the application were ordered to be provided for in the cause
• The court reviewed and set aside the Ruling and Order of the Hon. Lady Justice Jacqueline Kamau made on 30th July, 2015
• The impugned affidavits of Manjula Zaverchand Shah filed in support of the Originating Summons and Notice of Motion dated 25th November 2014 were struck out

Legal Principles

• The court found that the Plaintiff's affidavits contained perjured statements, as she was not in Kenya at the time of filing, violating Section 11 of the Oaths and Statutory Declarations Act.
• The 3rd Defendant sought judicial review of the 30th July 2015 ruling under Order 45 of the Civil Procedure Rules, arguing for its correction based on newly discovered evidence and an apparent legal error.
• The court acknowledged that the Plaintiff's husband was barred by res judicata from seeking an injunction against the Bank regarding the statutory power of sale, as previously determined in prior proceedings.
• The court ruled that judgments obtained by fraud (e.g., perjured affidavits) are nullities and should not be upheld, invalidating the prior ruling and orders based on this principle.

Precedent Name

• Equity Bank Ltd vs West Link Mbo Ltd
• Shirika La Kusaidia Watoto wa Kenya vs Rhodah Rop
• National Bank of Kenya Ltd vs Njau
• Muyodi vs Industrial & Commercial Development Corporation
• Edward Odembo Ajulu vs Wanga Oniangi
• Republic Vs Anti-Counterfeit Agency Ex-parte Surgipharm Limited

Cited Statute

• Land Act, 2012, Sections 90, 96, 99 & 102(2)
• Civil Procedure Act, Sections 1A, 1B & 3A
• Oaths and Statutory Declarations Act, Section 11
• Court of Appeal Rules, Rule 82 and Rule 75(1)
• Civil Procedure Rules, Order 45

Judge Name

Passage Text

• It is plain therefore that the second ground for review lacks merit for the reason that it has as its target, not at an error on the face of the record, but the Hon. Judge's interpretation of the aforesaid provisions of the Land Act, 2012. I would agree with the Plaintiff's Counsel on this score, that the Hon. Judge was entitled to her opinion and that if the 3rd Defendant was dissatisfied therewith, then their option was to go on appeal on that ground.
• 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 and grant the orders prayed for in paragraphs 4, 5.1, 5.2, and 5.3 as more particularly set out hereunder:
• 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.