Issues for determination
27.I have set out hereinabove the contents of the application and the response with as much fidelity to the record for clarity as to the exact nature of the dispute leading to the present application. On a preliminary basis I must note that the ex parte applicant’s objections to the locus of the applicants to apply for review based on allegations that they are not the trustees of the Naivasha Uiguano Group can not be allowed to stand. Any person has a right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. I am echoing the provisions of Article 50(1) of the constitution. It is also evident from the provisions of Order 53 rule 4 that any person whom the court considers ought to be served should be served with the judicial review notice of motion. That rule provides as follows verbatim:
||If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct.
28.Indeed, it is under that rule and Order 53 rules (2) and (3) under which the applicants have submitted that that the ex parte applicants were bound to serve them with the judicial review notice of motion, or the court should have moved suo motu to order service of every person affected by the suit.
29.Order 53 Rules (2) and (3) provide as follows respectively:(2)The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.(3)An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.
30.The applicants state that they were unaware of the proceedings which claim the ex parte applicants have disputed; the case of the ex parte applicants on this point is that the applicants were aware of the judicial review proceedings and that they chose to remain in the background as the Land Registrar, whom they surreptitiously armed with copies of their documents, fought their battle for them in court. In other words, the ex parte applicants allege that the present applicants participated through proxy in the proceedings that gave rise to the impugned judgment. This court grappled with the issue of non-service of a judicial review notice of motion in the case of Republic v Land Registrar Trans Nzoia County & another Ex-Parte Turbo Munyaka Cooperative Society Limited & 4 others  eKLR. It observed as follows while addressing the issue:“…the instant case presents a peculiar situation in the sense that there is no evidence on record to demonstrate that the parties, that is the applicants, herein that are adversely affected by the order of mandamus issued by this Honourable court were notified and or served with the instant proceedings in accordance with the provisions of Order 53 Rule 3(2) of the Civil Procedure Rules. The question that follows therefore is whether this Honourable Court should turn a blind eye on failure on part of the Ex-Parte Applicant to notify all the affected parties and condemn the Intended Interested Parties/Applicants unheard. The Ex-Parte Applicant had a duty to serve upon and/or notify the members of the Co-Operative Societies herein the applicants included, of these proceedings.”
31.It is noteworthy that though the ex parte applicants dispute the trustee status of the applicants, they do not dispute the fact that the applicants are members of the Naivasha Uiguano Group, and in this court’s view, that membership could have granted them an opportunity, had they applied, to be joined to the judicial review application and be heard. In the Turbo Munyaka case (Supra) this court declined to be drawn into the issues of the internal disputes within the management of the society and redirected that dispute to another forum by stating as follows:“
35.It follows therefore that the members herein appear to have internal disputes within the management of their societies. This is so because the Applicants are accusing the said Onesmus Gichiri Njoroge, of not being the chairman of a defunct Turbo Munyaka Cooperative Society Limited and of concealing information from the court. It follows therefore that if the members are not agreeable on the membership and / or ownership of the plots secured by their respective Co-operative Societies then it is the mandate of the Co-operative Societies Tribunal as established under Sections 76 and 77 of the Co-operative Societies Act Cap 490 Laws of Kenya to deliberate on their dispute. Section 76 states as follows: -“76. Disputes(1)If any dispute concerning the business of a co-operative society arises: -(a)among members, past members and persons claiming through members, past members and deceased members; or(b)between members, past members or deceased members, and the society, its Committee or any officer of the society; or(c)between the society and any other co- operative society.It shall be referred to the Tribunal.(2)A dispute for the purpose of this Section shall include(a)a claim by a co-operative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or(b)a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt or demand is admitted or not;(c)a claim by a Sacco society against a refusal to grant or a revocation of licence or any other due, from the Authority.”
32.The dispute as to who is the proper trustee of the Naivasha Uiguano Group is not therefore an issue that should be validly placed at the doorstep of this court for determination or even for consideration as a ground for review or setting aside the judgment of the court issued earlier in this matter.
33.It is on the basis of the foregoing argument that this court declines to grant the ex parte applicants’ plea that this court should deny the applicants a hearing on the basis that they are not the valid trustees of the Naivasha Uiguano Group.
34.Notwithstanding the length and breadth of the submissions of the parties, and I must admit that they are quite detailed, the only task before this court is to establish if the judgment delivered in this judicial review application is amenable to review or setting aside either under the Civil Procedure Rules cited by the applicants or under the inherent jurisdiction of the court, or whether it can only be appealed to the Court of Appeal. It would appear that there is that ubiquitous temptation for parties to address the court on contested factual matters in applications for review or setting aside of judicial review judgments which, while counsel for parties have blissfully immersed and gorged themselves to their full in submissions, the courts have consistently avoided. To delve into any contested factual matters raised in the application and the parties’ affidavits other than the legal issues distilled herein above for determination would in the circumstances be improper, and may amount to usurpation of a civil court’s jurisdiction.
35.In the case of Republic v The Chief Land Registrar & Another Ex parte James Njoroge Njuguna  eKLR the court observed as follows in an application for review and setting aside a judicial review judgment:“I take the position that it would be improper for me to make specific findings on matters which may well be the subject of full determination at a later stage. My conclusion is that the issue of jurisdiction and service of the motion for judicial review are decisive in the matter and those are the issues I will deal with.”
36.In the case of Republic v Land Registrar Trans Nzoia County & another Ex-Parte Turbo Munyaka Cooperative Society Limited & 4 others  eKLR whose facts are not very different from those of the present case, it was submitted that the court was mistaken on the correct position on the ground after being misled by the Ex-Parte Applicant. It was further submitted that if the judgment of this Honourable Court made on 17th March 2017 in that matter was not reviewed, the applicants who are among the original members of Munyaka Trading Centre would be adversely affected by the order of Mandamus issued therein since the implementation of the said order would make the applicants and other original members of Munyaka Trading Centre to lose their plots. This court observed as follows in the Turbo Munyaka case, (Supra):“For now I am persuaded that this court can not look into the merits of the applicant’s claim to the parcels of land subject matter of the dispute. Can this court determine in these proceedings whether the said Gichiri was or was not the chairman, or whether the plots are owned by the applicant or by the respondent? The answer is “no”. This court is ill equipped to do that, given the restrictive parameters within which judicial review applications should be considered and determined. Granting the applicants’ application may raise questions as to whether this court has not gone beyond the mandate granted it in matters judicial review.”
37.Judicial review applications are neither criminal nor civil in nature. See Commissioner of Lands v Kunste Hotels Ltd (1995-1998) 1 EA 1. The Civil Procedure Act in its preamble states that the Act is “An Act of Parliament to make provision for procedure in civil courts”. The present application has been brought under the provisions of inter alia Order 45 Rule 2 and Order 22 Rule 22 of the Civil Procedure Rules. The chamber summons for leave filed by the ex parte applicants on 18/3/2021 was brought under inter alia Order 53 (1) And (4) of the Civil Procedure Rules, and Section 7 and Section 8 of the Fair Administrative Action Act No 4 Of 2015.
38.Sections 7 and 8 of the FAA provide as follows:7. Institution of proceedings(1)Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–(a)a court in accordance with section 8; or(b)a tribunal in exercise of its jurisdiction conferred in that regard under any written law.(2)A court or tribunal under subsection (1) may review an administrative action or decision, if–(a)the person who made the decision–(i)was not authorized to do so by the empowering provision;(ii)acted in excess of jurisdiction or power conferred under any written law;(iii)acted pursuant to delegated power in contravention of any law prohibiting such delegation;(iv)was biased or may reasonably be suspected of bias; or(v)denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;(b)a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;(c)the action or decision was procedurally unfair;(d)the action or decision was materially influenced by an error of law;(e)the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;(f)the administrator failed to take into account relevant considerations;(g)the administrator acted on the direction of a person or body not authorized or empowered by any written law to give such directions;(h)the administrative action or decision was made in bad faith;(i)the administrative action or decision is not rationally connected to–(i)the purpose for which it was taken;(ii)the purpose of the empowering provision;(iii)the information before the administrator; or(iv)the reasons given for it by the administrator;(j)there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;(k)the administrative action or decision is unreasonable;(l)the administrative action or decision is not proportionate to the interests or rights affected;(m)the administrative action or decision violates the legitimate expectations of the person to whom it relates;(n)the administrative action or decision is unfair; or(o)the administrative action or decision is taken or made in abuse of power.(3)The court or tribunal shall not consider an application for the review of an administrative action or decision premised on the ground of unreasonable delay unless the court is satisfied that–(a)the administrator is under duty to act in relation to the matter in issue;(b)the action is required to be undertaken within a period specified under such law;(c)the administrator has refused, failed or neglected to take action within the prescribed period.8. Period for determination of applications and appealsAn application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application.
39.The notice of motion itself was brought under Order 53 (3) and (4) of the Civil Procedure Rules unlike the chamber summons for leave which is expressed to have been brought under Order 53 (1) and (4) of the Civil Procedure Rules, and Section 7 and Section 8 of the Fair Administrative Action Act No 4 Of 2015. It can only be presumed, it not having been expressly stated, that the substantive motion was brought under Section 7(2)(v) of the Fair Administrative Act. That notwithstanding, that FAA does not make provisions similar to those of Sections 8(3) and 8(5) of the LRA and this court hence has to look up to only the LRA and Order 53 of the Civil Procedure Rules on the issue of whether a decision in judicial review proceedings can be reviewed or set aside. And those provisions clearly state as follows:“
8.Orders of mandamus, prohibition and certiorari substituted for writs
(1)The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.(2)In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, (1 and 2, Geo. 6, c. 63) of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.(3)No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section.(4)In any written law, references to any writ of mandamus, prohibition or certiorari shall be construed as references to the corresponding order, and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order.(5)Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.”
40.In the case of Biren Amritral Shah and Anor vs Republic & 3 Others 2013 eKLR it was held by the Court of Appeal, in reliance on the provisions of Section 8 of the Law Reform Act, that with respect to judicial review a court is exercising its powers under Order 53 of the Civil Procedure Rules where no provision for review of its own decisions has been made, and therefore the court has no jurisdiction to review its own orders. In the Biren Case (supra,) the Court of Appeal observed as follows:“Section 80 of the CPA is clear. It stipulates, that a review is allowed from an order or a decree from which an appeal is allowed or not allowed by the Act. It therefore follows that, the High Court can review its own orders or decrees in suits where the court is exercising its ordinary jurisdiction.With respect of judicial review are set out. It is noteworthy that, there is no provision for preview by the superior court of its own decisions in judicial review, once rendered.Section 8(5) of the Law Reform Act does however specify that:“Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.”It is therefore quite clear that appeals in respect of orders made under judicial review lie with the Court of Appeal. Therefore, in answering the question whether the High Court had jurisdiction to entertain a review application, we agree with the learned judge of the High Court that, in exercising its special jurisdiction under the Law Reform Act, the High Court had no jurisdiction to review previous order.”
41.In the case of Republic v Chief Land Registrar & 2 others ex parte Michael Njenga Waweru  eKLR the court stated as follows:“
23.It is therefore my view that whereas the Court has no power to review a decision made on judicial review pursuant to section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, it has a residual jurisdiction pursuant to its inherent powers to correct its mistakes and this may, where merited, include granting orders whose effect may amount to a review. That the Court may not review its decisions under the Civil Procedure Act is in my view informed by the provisions of section 3 of the Civil Procedure Act which provides:“In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.”24. It follows that where there is a special jurisdiction or power conferred, or any form or procedure prescribed, by or under any other law, the provisions of the Civil Procedure Act are inapplicable. It must be remembered that apart from Order 53 of the Civil Procedure Rules, the provisions of the Civil Procedure Act and the Rules made thereunder do not apply to judicial review proceedings. Accordingly Order 45 of the Civil Procedure Rules would similarly not apply to these type of proceedings.”
42.The decision of the Court of Appeal in the Biren Case (supra) is therefore clear that no order or rule outside Order 53 which deals with judicial review, including rules under Order 45, is applicable to facilitate the setting aside of a judgment made in judicial review proceedings. For that reason, I need not therefore consider whether the applicant’s application has satisfied the conditions set down for review under Order 45 of the Civil Procedure Rules or not.
43.In the case of Republic v Land Registrar Trans Nzoia County & another Ex-Parte Turbo Munyaka Cooperative Society Limited & 4 others  eKLR this court was faced with a similar situation as in this case, where some applicants had not been heard in judicial review proceedings that ended up with an order directing the Land Registrar to issue titles to their adversary, the ex parte applicant. The ex-parte applicant was a body that according to the applicants was non–existent, its name having been changed. This court adopted the course taken by the Court of Appeal in the Biren Case (supra) and applied the provisions of Section 8 of the Law Reform Act and declined to grant orders of review and/or setting aside. That was the earlier position also taken by the court in the Kuria Mbae v The Land Adjudication Officer – Chuka and Another Nairobi HC Misc. Appl. No. 257 of 1983 (Mbito and Mango JJ) as follows:“There is no doubt or dispute that a party aggrieved by the decisions of this court in granting or refusing an order of certiorari is entitled to appeal to the Court of Appeal. However, according to section 8(3) of the Act, this court’s order on such application is final and cannot be subject of pleadings or prohibition. There is also no provision in the said Act or any other law making such a prerogative order of this court subject to the usual pleadings available in proceedings under the Civil Procedure Act.”
44.In the present case too, I hold that under Order 53 of Civil Procedure Rules and Section 8(3) and Section 8(5) of the Law Reform Act, no orders of review may issue on a judgment made in a judicial review application.
45.What about the inherent jurisdiction of the court? Can it enable a setting aside of the same judgment? First it must be observed that the inherent jurisdiction of the court is also provided for in the Civil Procedure Act at Section 3A as follows:“3A. Saving of inherent powers of court.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
46.In addressing the issue of inherent jurisdiction of the court, Majanja J in the case of James Njuguna Njoroge (supra) distinguished the applicability of the decision in Republic v Municipal Council of Mombasa and Others ex-parte Adopt-A-Light Limited Nairobi C.A. Civil Appl. No. 15 of 2007 (Unreported)  eKLR for the proposition that prerogative orders were final in nature and this court lacks jurisdiction to set them aside and stated that the decision was made while the Court of Appeal was simply considering whether a judicial review decree or order could be stayed. He stated as follows:“
29.I take the position that the case cited is not authority for the proposition that the High Court lacks jurisdiction to set aside prerogative orders but rather as I have quoted, the Court of Appeal was dealing with an application for stay pending appeal and its decision should be read as deciding that the Court of Appeal will only reverse an order of certiorari upon hearing the appeal. The case is therefore not applicable to the circumstances of this case as an application to set aside judgment is not interlocutory or interim in nature, its effect is final and after the judgment has been set aside, the matter is to be reheard afresh. My view is fortified by the decision in the case of Republic v Public Procurement Administrative Review Board ex-parte Kenya Electricity Generating Company Limited CA Civil Appl. No. 63 of 2010 (Unreported)  eKLR where the Court of Appeal noted that, “[F]rom its nature, an order of certiorari cannot be stayed pending appeal by interlocutory proceedings. Rather it can only be set aside in the appeal itself.” For this court it suffices to state that there is no claim that the impugned judgment was obtained by way of a misconceived consent or based on a repealed law; the issues of whether the judgment was obtained by fraud or deceit and is it amounts to a nullity are, consequent upon the prior finding of this court that it can not review its own judicial review judgment, for the Court of Appeal to determine.”
47.In the present case, the ex parte applicants submit that the applicants resorted to an argument under the inherent jurisdiction of the court after realizing that reliance on Order 45 could not save their application. They cite the cases of Robert Tom Martins Kibisu v Republic  eKLR to state that fraud and deceit in the obtainance of the judgment, nullity of the judgment, judgment obtained by a misconceived consent between the parties and judgment based on repealed law, which are the parameters set by the Supreme court in that case for the exercise of inherent power by a court to set aside own judgment, do not apply to the instant case. They also rely on Annabella Kiriinya & Batram Muthoka (sued as Chairman and Chief Executive Officer of the Agricultural Society of Kenya Nairobi) Judicial Review Application No. 55/2020.
48.In the James Njuguna Njoroge case, (supra) the court (Majanja J) also recognized the fact that the Kuria Mbae case (supra) was an appeal against the review of a substantive judicial review judgment but differed from it and held that a review or setting aside order could issue and stated as follows:“
30.I also take a contrary from their lordships in the Kuria Mbae case (Supra) for several reasons. First, section 8(3) and (5) or the Law Reform Act does not specifically exclude either the inherent power of the court to do justice and prevent an abuse of its process. Secondly, Order 53 rule 2 of the Civil Procedure Rules which gives practical effect to prerogative orders requires that all persons directly affected be served with the motion. In the event a party is not served, is the court to remain powerless to act? In my view, the rules of natural justice are so well entrenched in our jurisprudence and cannot be ignored. Apart from their constitutional underpinnings, various decisions of our courts are testimony to this position. Thirdly, the applications before the court seek to set aside proceedings for want of service. I do not think that the law intended the Court of Appeal to exercise original jurisdiction to set aside what are in essence ex-parte proceedings. The jurisdiction of the appellate court is to hear appeals from the High Court and not applications for aside ex-parte proceedings.
31.The court exercising judicial review jurisdiction has inherent jurisdiction to set aside a judgment wrongly entered. (See generally Magon v Ottoman Bank  EA 609, Mulira v Dass  EA 227, Ali Bin Khamis v Salim Kirobe  EACA 1956]. I would also adopt the words of Justice Nyamu in Kenya Bus Service Ltd and Others v Attorney General and the Minister for Transport and Others Nairobi HC Misc 413 of 2005 where he stated that, “Where there is no specific provision to set aside, the courts power or jurisdiction would spring from inherent powers of the court. Whereas ordinary jurisdiction stems from Acts of Parliament or statutes, the inherent powers stem from the character and the nature of the court itself – it is regarded as sufficiently empowered to do justice in all situations.”
32.The courts have not remained powerless and in many cases have acted to do justice to parties. In the case of Republic v Registrar of Titles and Another ex parte Saida Twahir Mohamed Hatimy Mombasa HC Misc. Appl. No. 46 of 2005 (Unreported)  eKLR the court dealt with the issue of the effect of non-service. Justice Mwera stated that, “the duty is on the applicant to serve such affected parties ….. if the applicant omits or fails to serve such persons directly affected, then, they are entitled to come before the court and seek that the orders obtained without due service be set aside as being a nullity.” (Emphasis mine)
49.It is evident from the dicta of the learned judge in the James Njuguna Njoroge case (supra) that he considered three main grounds as buttressing the proposition that the court had jurisdiction to review its own orders upon judicial review. First, Section 8(3) and (5) or the Law Reform Act does not specifically exclude either the inherent power of the court to do justice and prevent an abuse of its process; secondly, Order 53 Rule 2 of the Civil Procedure Rules which gives practical effect to prerogative orders requires that all persons directly affected be served with the motion; thirdly, the jurisdiction of the appellate court is to hear appeals from the High Court and not applications for aside ex-parte proceedings. On those grounds he concluded that The court exercising judicial review jurisdiction has inherent jurisdiction to set aside a judgment wrongly entered.
50.It is noteworthy however that not all cases bear similar facts and in this court’s view, the court in the James Njuguna Njoroge case (supra) was dealing with a case in which James Njuguna filed the application for judicial review on the basis that he was the legal representative of the estate of his father having obtained a grant of letters of administration ad litem. In his judicial review notice of motion, he sought orders of mandamus to be issued compelling the respondents herein to cancel all entries and dealings made in the register pertaining to L R No. 11916/2 after the death of Joseph Njuguna Njoroge, his deceased father. In the alternative, he sought orders of certiorari to remove to this Honourable Court for purposes of quashing all entries and fraudulent dealings made in the register pertaining to LR No. 11916/2 after the death of Joseph Njuguna Njoroge. It was his case that Felistus Wanjiru, without his knowledge or consent unlawfully and fraudulently transferred LR No. 11916/2 to her name thereby creating LR No. 11916/3 which was registered by the Chief Land Registrar in her favour. He also alleged that the transfer was a forgery having been executed by his deceased father six years after his death and in the circumstances the parties who had obtained title through her could not have obtained good title. Prerogative orders of certiorari and mandamus were granted as prayed and soon thereafter two applications seeking to set aside orders issued were lodged by interested parties who claimed non-service of the Judicial Review motion. Among the grounds proffered was one that the ex-parte applicant is not the personal representative of the estate of his father as Joseph Njuguna Njoroge left a valid will in which the only executors were the deceased’s late wife Felista Wanjiru and Mr. Mohamed Akram Khan, an advocate; also, contrary to the ex parte applicant’s allegation that he had been disinherited, the ex-parte applicant in fact inherited LR No’s 11916/13 and 14 (presumably through the same will) which he subsequently sold to Gabriel Kiarie and Eliud Gitumbi and Margaret Wambui Kenyatta and whose transfers were registered after the death of his father. Another ground was that some of the affected parcels of land were not subdivisions of LR 11916/3 and had nothing to do with the fraud alleged against the ex parte applicant’s mother, and so the orders given by the court affecting them are nullity and should be set aside ex debito justitiae. The judge summed up the whole situation thus:“
21.On the whole the applicants submit that the judgment of 26th October 2010 was obtained through a calculated and deliberate misrepresentation and fraudulent concealment of material facts.”
51.The judge concluded as follows:“
50.Even if I were wrong on the ground of service of the applicants, I would nevertheless still set aside the judgment for the reason that when the ex-parte applicant moved the court he sought the, “Cancellation of all entries made in the register of LR No. 11916/2 after the death of his father.” These parcels include LR Nos. 11916/9, 10, 11, 12, 13 and 14 which are not sub-divisions of LR No. 11916/3 and which have nothing to do with the fraud allegedly committed by the ex-parte applicant’s mother and which fraud forms the basis of the suit. The effect of the order was to disentitle Gabriel Kiarie and Eliud Gitumbi, Estate of P. J. Kamau and Ephraim Njoroge Njuguna of their properties without affording them a hearing. There is also evidence that the representative of the 5th interested party, who is deceased, were not served with legal process.”
52.In the Joseph Njuguna Njoroge case (supra) it is therefore quite evident that impugned transfers were effected and the transferees in the purely commercial transactions went their own way and were quite unaware that proceedings that would affect their title were subsequently filed. Besides, the issue of a will under which the ex parte applicant had benefited by inheriting some of his late father’s property featured prominently, for that also appears to have been the same will under which his mother had inherited the property said to be subject of forgery which was totally an absurd situation. Apparently the issue of the manifest injustice that emanated from this situation called for, in the opinion of the judge, and I do not for one moment doubt that that was the correct position, the exercise of the court’s inherent jurisdiction to set aside the judgment, and he did so, citing the words of Nyamu J. in Kenya Bus Service Ltd and Others v Attorney General and the Minister for Transport and Others Nairobi HC Misc 413 of 2005 where he stated that:“Where there is no specific provision to set aside, the courts power or jurisdiction would spring from inherent powers of the court. Whereas ordinary jurisdiction stems from Acts of Parliament or statutes, the inherent powers stem from the character and the nature of the court itself – it is regarded as sufficiently empowered to do justice in all situations.”
53.The context in which the Hon Justice Nyamu made the quoted dicta in the Kenya Bus Case (supra), is that by an application dated 24th March 2005 brought by way of a Notice of Motion expressed to be grounded on Section 84(1) and 2 of the then Constitution of Kenya and Rule 10(a) of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules 2001, the three plaintiffs namely, Kenya Bus Service Ltd, Bustrack Ltd and Msafiri Passenger Services Ltd claimed that their Constitutional rights had been violated by the two defendants namely the Attorney General and the Minister for Transport. The main ground relied on is that the plaintiff/applicants in the Notice of Motion had expended unbudgeted funds to comply with an unlawful law and hence the applicant has been denied the fundamental right to protection of law guaranteed by Section 70(c) of the Constitution and the further fundamental right not to have their properties as guaranteed under Section 76 of the Constitution entered into. The applicants in the motion further contend that as a result of the enforced compliance with the new Traffic Regulations, the applicants’ cash flows had been severely curtailed and they had been unable to service accounts with their creditors. The applicants had from inception joined the 221 creditors including the 1st, 2nd and 3rd interested parties (who subsequently made the setting aside applications before the Hon Justice Nyamu dated 7th April 2005, 18th April 2005 and 29th May 2005 respectively). Osiemo J granted some orders on the notice of motion without hearing the interested parties yet they had been joined to the suit from inception. Nyamu J summed up the consequences of Hon Osiemo’s order as follows:“Thus without any battle what appears to be final orders were granted ex-parte until the determination of the Originating Summons against 221 Interested parties many of whom I understand have not yet been served to date, special interest being taken on the Interested parties which had obtained judgments as creditors or those who were poised to execute the decrees or those about to petition for winding up.”
54.Again, the manifest injustice that appears to have occurred to persons with independent contracts executed between them and the applicants in that case, and who had already been made parties is evident in the Kenya Bus Service Case(supra). Denial of natural justice in that particular case occasioned the drastic remedy by the Hon Nyamu J of setting aside the orders made while no provisions for setting aside existed.
55.Nyamu J continued as follows in the Kenya Bus Service case (supra):“It is trite law that an ex parte order can be set aside by the judge who gave it or by any other judge. The Civil Procedure Rules provide for this. Our Constitution does assume the existence of supportive Civil Procedure regime in so far as the same is not inconsistent with the Constitution. There is nothing inconsistent with the Constitution in the act or principle of setting aside of ex parte orders for good reasons. If an order obtained in a Constitutional application is incompetent or improperly obtained there cannot be any valid reason why the court would not have the jurisdiction to set it aside. Setting aside would be properly justified on grounds of doing justice and fair play and good administration of justice and therefore in furtherance of public policy...Where there is no specific provision to set aside the courts power or jurisdiction would spring from the inherent powers of the court. Whereas ordinary jurisdiction stems from the Act of Parliament or statutes, the inherent powers stem from the character or the nature of the court itself – it is regarded as sufficiently empowered to do justice in all situations. The jurisdiction to exercise these powers was derived, not from statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called “inherent”. For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent the process being obstructed and abused. Such a power is intrinsic in a superior court, its very lifeblood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction, which is inherent in a superior court of law, is that which enables it to fulfil itself as a court of law. The judicial basis of this jurisdiction is therefore the authority of the Judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner. The need to administer justice in accordance with the Constitution occupies an even higher level due to the supremacy of the constitution and the need to prevent the abuse of the Constitutional provisions and procedure does occupy the apex of the judicial hierarchy of values. Therefore, the Court does have the inherent powers to prevent abuse of its process in declaring, securing and enforcing Constitutional rights and freedoms. It has the same power to set aside ex parte orders, which by their very nature are provisional.” See The Reform of Civil Procedure Law and Other Essays in Civil Procedure  By Sir Isaac J H Jacob and WEA Records Limited v Visions Channel 4 Limited & Others  2 All ER 589; R vs. Land Registrar Kajiado & 2 Others Ex Parte John Kigunda HCMA No. 1183 of 2004.”
56.Nevertheless, it is worthy of note that first, contrary to the situation in the present dispute, what was before Nyamu J were proceedings to set aside orders made ex parte in an interlocutory application in a constitutional petition and there were no provisions for setting aside; the present dispute is about reviewing or setting aside a final judgment and the hearing herein was certainly not conducted ex parte. In respect of the Kenya Bus Services case (supra), there were no provisions such as those in Section 8 of the LRA impliedly barring setting aside and providing for the sole remedy of an appeal.
57.Odunga J stated in the Republic v Chief Land Registrar & 2 Others Ex Parte Michael Njenga Waweru 2017 eKLR case as follows:“
25.However, where a mistake is shown to have been committed which is remediable by the Court the same ought to be corrected by the Court in the exercise of its inherent jurisdiction and not necessarily under section 3A of the Civil Procedure Act which strictly speaking does not apply to judicial review proceedings. That section it has been held time and again does not confer inherent jurisdiction on the Court but only reserves the same. The court, no doubt has inherent powers to make such orders as may be necessary for the ends of justice and inherent power is not donated by Section 3A of the Civil Procedure Act. In Ryan Investments Ltd & Another vs. The United States of America  EA 675 it was held that section 3A of the Civil Procedure Act is not a provision that confers jurisdiction on the court but simply reserves the jurisdiction which inheres in every court. The court has inherent jurisdiction not created by legal provisions, but which only manifests the existence of such powers.
26.Dealing with inherent powers of the Court it was held in Republic v The Public Procurement Complaints, Review and Appeals Board & Another Ex Parte Jacorossi Impresse Spa Mombasa HCMA No. 365 of 2006 that the Court has power under its inherent jurisdiction to make orders that may be necessary for the ends of justice and to enable the Court maintain its character as a court of justice and that this repository power is necessary to be there in appreciation of the fact that the law cannot make express provisions against all inconveniences.”
58.I have considered the cases cited by the applicants in support of their motion too and they are distinguishable; the cases of Accredo AG (supra) and JMK v MWM (supra) dealt with setting aside a consent judgment and the dispute therein was purely civil in nature which is clearly not the case herein. Daniel Nganga Kamande (supra) was a civil suit and the applications made therein were brought under the Civil Procedure Act and Rules. The Judicial review case of Republic Vs Chief Land Registrar & 2 Others Ex Parte Michael Njenga Waweru 2017 eKLR also dealt with a consent judgment between the parties to the exclusion of the interested parties who subsequently applied for their joinder. In that case the respondent relied on the Biren case (supra) but the court nevertheless allowed the review application, giving reasons contained in the earlier analysis herein.
59.The fact that the judgment was by consent in the Republic v Chief Land Registrar & 2 Others Ex Parte Michael Njenga Waweru 2017 eKLR made the court observe that “whether an order is by consent or otherwise, this Court cannot countenance a situation where persons decide to make themselves parties to a suit with a view to recording consents thereat in order to deny a person whose interests are thereby affected an opportunity of being heard.” The misgivings regarding a collusive consent or potential fraud do not apply in the present case where the application was heard and the decision made on the basis of the affidavit evidence of the parties joined. I need not say much regarding the Court of Appeal decision in the 2011 Nakumatt Holdings (supra) which was made before the Court of Appeal decision in the 2013 Biren case and which was not analyzed in the latter decision.
60.Turning back again to the present case, this court does not find any such incidence of manifest injustice or mistake of the court characteristic in some of the decisions relied on by the applicant such as Republic v Chief Land Registrar & 2 Others Ex Parte Michael Njenga Waweru 2017 eKLR or Kenya Bus Service Ltd and Others v Attorney General and the Minister for Transport and Others Nairobi HC Misc 413 of 2005 as would be sufficient to occasion the issuance of a setting aside order at the exercise of the inherent jurisdiction of the court for several reasons. First, the applicants and the ex parte applicants were all members of the same organization which was involved in management wrangles and who were interested in the same land and in this court’s view there is great likelihood that there was awareness on the part of the applicants by dint of their dealings with the Land Registrar’s office that the present judicial review proceedings were underway in court. Indeed, I find no credible rebuttal to the ex parte applicant’s assertion that the applicant’s documents attached to the response by the Land Registrar must have been provided to the Land Registrar by the applicants so that he may fight a proxy battle on their behalf. Secondly, in view of the fact that only a leadership wrangle has escalated the case to the corridors of justice and the applicants have not been dispensed with as ordinary members of the Naivasha Uiguano Group, this court sees no manifest injustice as that in the James Njoroge and Kenya Bus Services Cases (supra) that would arise from the judgment of the court which necessitates this court to, in the absence of any law enabling a review and setting aside, step in and review or set aside the impugned judgment. Lastly, the substantive disputes regarding trusteeship and land ownership and distribution among members can be ventilated in other fora as this court lacks jurisdiction to address the same in a judicial review application. The exercise of the court’s inherent jurisdiction in the circumstances of the present application would be undesirable.
61.The upshot of the foregoing is that the Notice of Motion dated 19/4/2022 lacks merit and it is hereby dismissed with costs to the ex parte applicants.