https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4880

Churu & 2 others (Suing as the Trustees of PCEA Thindigua Church) v Thuo (Environment and Land Case E159 of 2022) [2026] KEELC 4880 (KLR) (27 July 2026) (Ruling) Neutral citation: [2026] KEELC 4880 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E159 of 2022 JA Mogeni, J July 27, 2026 Between Faith Muthoni Churu 1st Plaintiff Joseph Ndungu Njoroge 2nd Plaintiff Lucy Wambui Waweru 3rd Plaintiff Suing as the Trustees of PCEA Thindigua Church and Grace Muthoni Thuo Defendant Ruling 1.This Ruling is in respect of a Notice of Motion Application filed by the Plaintiff/Applicant and dated 19/01/2026. The Application is brought under Order 45 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act and the Applicant seeks the following:a.This Honourable Court be pleased to review and set aside the order made on 11/11/2025 dismissing the Plaintiffs/Applicants suit;b.This Honourable Court be pleased to reinstate the Plaintiffs/Applicants suit for hearing and determination on merit;c.Costs of this application be provided. 2.The application is grounded on what the Applicant alleges to be discovery of crucial, new information that was unavailable to the Plaintiffs/Applicants before the Court dismissed their suit on November 11/11/2025. While the Court's dismissal was based on the assumed existence of parallel proceedings in Milimani ELC Case No. 093 of 2015, the Applicants subsequently learned that those proceedings had actually been terminated and closed on 2/07/2025. Because the parties had already submitted their written arguments and were awaiting a Ruling date, the Applicants could not have brought this critical development to the Court's attention sooner; therefore, they argue that this termination is a material fact that directly impacts the Court's decision, making the reinstatement of the suit necessary to serve the interests of justice and fairness. 3.The application is further supported by the Affidavit sworn by Faith Muthoni Churu on even date. The Deponent, Faith Muthoni Churu, a Trustee of PCEA Thindigua Church, deposes that she is duly authorized by her co-trustees to swear the Supporting Affidavit and sign all necessary pleadings on their behalf, affirming her competence and familiarity with the underlying facts of the dispute. She avers that she was informed by the Applicants' advocates on record that the Honourable Court delivered a Ruling on 11/11/2025, which dismissed the Applicants' suit. A copy of the said Ruling is annexed and marked as "FMC 1". The Deponent further clarifies that the primary basis for the Court's order of dismissal was the perceived existence of ongoing parallel proceedings between the parties in Milimani ELC Case No. 093 of 2015. 4.However, the Deponent brings to the attention of the Court a critical, subsequent development. That while the parties were awaiting the impugned Ruling, the parallel proceedings in Milimani ELC Case No. 093 of 2015 were formally terminated on 2/07/2025. This termination occurred when the Applicants' handling counsel, Mr. Alex Mudanya Advocate, withdrew the application pending before that Court, resulting in the closure of the file. In support of this fact, a copy of the Case Tracking System (CTS) record shared by the Advocate is annexed and marked as "FMC 2". The Deponent emphasizes that this vital information could not be brought to the Court's attention prior to the delivery of the Ruling because it had not yet been communicated to the Trustees, and furthermore, the parties had already filed their written submissions and the matter had been spent for Ruling. Contending that the termination of the parallel suit is a material fact that would have led the Court to a different conclusion, the Deponent prays that the Honourable Court exercises its inherent discretion to review and set aside the dismissal order and reinstate the suit for hearing and determination on its merits. 5.The Application is opposed by the Respondent who filed a Replying Affidavit sworn on 4/03/2026. The Defendant/Respondent, Grace Muthoni Thuo, deposes that she is fully competent to swear the Replying Affidavit, having read and understood the Applicants’ Notice of Motion dated 19/01/2026, which she opposes. She avers, that the application for review fails to satisfy the high threshold and statutory grounds required for review under the law, rendering it misconceived, bad in law, defective, and wholly unsustainable. 6.The Respondent further deposes that the application constitutes a gross abuse of the Court process, asserting that the Applicants have historically filed multiple suits to manipulate the judicial system and have previously obtained ex-parte orders in the instant matter through an abuse of due process. Furthermore, she levies grave allegations against the Applicants, averring that they committed fraud to obtain the subject land, have utilized the Court process fraudulently, and lack the necessary locus standi to institute the suit on the basis that they are not bona fide trustees of the PCEA Church. 7.Turning to the Applicants' primary ground for review, the Respondent vehemently refutes the claim that the Applicants voluntarily withdrew the parallel suit, asserting instead that they were actively pursuing two eviction cases concurrently. She explicitly deposes that the Applicants did not withdraw Milimani ELC Case No. 93 of 2015 as alleged; rather, it was the Court itself that dismissed their application. In support of this contention, she indexes and annexes a copy of the Case Tracking System (CTS) record alongside the actual Court Ruling, marked as "GMT 1". Consequently, the Respondent maintains that the Applicants have failed to demonstrate any legitimate basis for the Court to exercise its review jurisdiction, and she prays that the Honourable Court dismisses the application with costs. 8.Despite the parties agreeing to canvass the application by way of written submissions, by the time of writing this Ruling, none of the parties had filed their submissions. Nonetheless I have considered the pleadings and I will analyse as is. 9.The core issue falling for determination in this application is whether the Plaintiff/Applicant has satisfied the strict statutory threshold for review of a Court order under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. Specifically, the Court must ascertain whether the purported termination of the parallel proceedings in Milimani ELC Case No. 093 of 2015 constitutes the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the Applicant’s knowledge or could not be produced at the time the dismissal order was made on 11/11/2025. In evaluating an application of this nature, the Court must be guided by the principles enunciated in the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, which established that a review can only be granted upon proof of the discovery of new and important matter, a mistake or error apparent on the face of the record, or for any other sufficient reason, and that a review is not an appeal in disguise. The Court stated:“A review will not be granted if those conditions are not strictly satisfied and it is not a right of appeal in disguise. An erroneous decision of a Court of law can only be corrected on an appeal. If the Court ignores the clear provisions of the law, that constitutes an error of law which can be a ground of appeal, but it is not a mistake or error apparent on the face of the record which can ground an application for review."The Court further clarified the standard of an error apparent on the face of the record, stating:“The error or omission must be self-evident and should not require an elaborate argument to be established." 10.In support of the application, the Applicant relies heavily on the discovery of what they characterize as a material change in circumstances, specifically that the parallel suit in Milimani ELC Case No. 093 of 2015 was closed on 2/07/2025, prior to the delivery of the impugned dismissal order. To anchor this argument, Kenyan jurisprudence dictates that for discovered evidence to warrant a review, it must be of such a nature that it would have had a decisive impact on the Court's original decision. In Pancras T. Swai v Kenya Breweries Limited [2004] eKLR, on the application of judicial discretion under the any other sufficient reason omnibus ground, and the absolute requirement for unpreventable novelty, the Court of Appeal observed:“In our view, an application for review can only be maintained on the specific grounds set out in Order XLV rule 1. The words 'for any other sufficient reason' have been interpreted to mean a reason sufficient on grounds analogous to those specified in the rule... The Applicant must show that the discovery of new and important matter or evidence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, after the exercise of due diligence." 11.In essence, the Court of Appeal emphasized that the Applicant must not only demonstrate that the evidence is new and crucial but must also prove that it could not have been produced earlier despite the exercise of reasonable diligence. 12.The Applicant herein attempts to discharge this burden by stating that the closure of the file via the Case Tracking System, annexed as "FMC 2", was not communicated to the Trustees by their handling counsel until after the matter had been spent for Ruling, thereby rendering it impossible to place before the Court before 11/11/2025. 13.Conversely, the Respondent’s opposition fundamentally challenges the veracity of the Applicant’s factual foundation, contending that the application is a defective abuse of the Court process wrapped in a misrepresentation of facts. The Respondent’s submission, backed by the annexure marked "GMT 1", directly contradicts the Applicant's narrative by demonstrating that the parallel suit was not voluntarily withdrawn by the Applicant's advocate, but was instead dismissed by the Court. This contradiction shifts the focus to the principle established in Benjoh Amalgamated Limited v Kenya Commercial Bank Limited [2014] eKLR, which in analyzing the limits of the Court's inherent power to recall or review its own orders when confronted with allegations of fraud or procedural manipulation, the Court of Appeal held:“The inherent power of the Court is not a tool to be used to bypass the clear machinery provided by the rules of procedure. It is a power to be invoked only where the justice of the case demands it to prevent an abuse of the process of the Court, and it remains a fundamental principle that a party who seeks the exercise of the Court’s discretion must approach the Court with clean hands and make a full and frank disclosure of all material facts." 14.The Court in the above case reinforces that a party seeking equity and the exercise of the Court’s discretionary power of review must approach the seat of justice with clean hands and full disclosure of material facts. By presenting evidence that the Applicant was concurrently and aggressively pursuing two eviction cases and that the parallel matter was judicially terminated due to its own defects rather than a strategic withdrawal, the Respondent successfully argues that the Applicant has failed to meet the high threshold for review, as the standard under Order 45 cannot be used to relitigate a matter where no bona fide mistake or unpreventable oversight has occurred. 15.Thus, the Court finds that the Applicant failed to establish the discovery of "new and important matter" as strictly required under Order 45 Rule 1 of the Civil Procedure Rules. To qualify, the information must be a bona fide surprise that could not have been discovered with the exercise of due diligence. Because the closure of Milimani ELC Case No. 093 of 2015 occurred on July 2, 2025 months before the Court’s dismissal Ruling on 11/11/2025 the information was entirely within the reach of the Applicants and their handling legal counsel. Negligence or a breakdown in communication between a party and their advocate does not constitute a ground for review. 16.Additionally, the Court finds a material contradiction between the Applicant's supporting affidavit and the objective record. The Applicant averred that the parallel suit was voluntarily withdrawn by their advocate, whereas the Respondent’s annexure ("GMT 1") conclusively proved that the application was actually dismissed by the Court. By failing to exhibit absolute candor and full disclosure, the Applicant violated the equitable principle that a party seeking the Court's discretionary review must approach the seat of justice with clean hands. 17.Therefore, applying the principles in National Bank of Kenya Limited v Ndungu Njau, (supra) the Court finds that the Applicant's motion is a thinly veiled attempt to relitigate the merits of the dismissal order. If the Applicants believed the Court erred in dismissing the suit based on the parallel proceedings, their proper recourse was to file an appeal in the Court of Appeal, not an application for review. 18.Consequently, the Court makes the following findings:i.The Notice of Motion Application dated 19/01/2026 is hereby found to be misconceived, lacking in merit, and an abuse of the Court process.ii.Consequently, the application is dismissed in its entirety.iii.The interim prayers seeking to review, set aside, and reinstate the Plaintiffs/Applicants' suit for hearing on its merits are declined.iv.Costs of this application are awarded to the Defendant/Respondent.It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA ON THIS 27TH DAY OF JULY 2026.………………………MOGENI JJUDGEIn the presence of:-Miss Tusasirwe holding brief for Mr. Njenga for the Plaintiffs/ApplicantsDefendant/Respondent – AbsentMr. Melita - Court Assistant………………………MOGENI JJUDGE