Njagi v Syokimau Farm Limited & 15 others (Land Case E020 of 2023) [2026] KEELC 3158 (KLR) (19 May 2026) (Ruling)

Njagi v Syokimau Farm Limited & 15 others (Land Case E020 of 2023) [2026] KEELC 3158 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3158 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Land Case E020 of 2023 AY Koross, J May 19, 2026 Between Daniel Joseph Gathaiya Njagi Plaintiff and Syokimau Farm Limited & 15 others & 15 others & 15 others Defendant Ruling 1.This ruling concerns the unopposed notice of motion dated 11 May 2026, filed by the plaintiff. The motion is expressed to have been made under Order 45, Rule 1(b) of the Civil Procedure Rules, and the plaintiff seeks the following orders from this court: -a.Spent.b.The honourable court be pleased to review, vary and or set aside its ruling and or decision dated 5th May 2026.c.The application dated 15th October 2025 be allowed as prayed.d.Costs be in the cause. 2.The motion is premised on the grounds of the body thereof and the supporting affidavit of Agnes Gathaiya, deposed to on an undisclosed date. She states that the ruling dated 5th May 2026 contains a clear error, as the court failed to render a determination on the unopposed application dated 15th October 2025. She argues that, in the interests of justice, this unresolved matter should be decided without further delay. 3.When this matter came up for hearing on 14 May 2025, Mr. Kalii, for the plaintiff, urged this court to allow the motion, thereafter the matter was reserved for ruling today. Thus, having carefully considered the motion, affidavit, and oral submissions, including the provisions of the law and judicial precedents, the sole issue for determination is whether the motion meets the legal threshold for review of the orders issued on 5 May 2026. 4.With respect to this issue, the relevant provisions governing the review of court decisions are set out in Section 80 of the Civil Procedure Act and Order 45, Rule 1 of the Civil Procedure Rules. Section 80 states that;“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.” 5.Further, Order 45 Rule 1 (1) of the Civil Procedure Rules provides as follows: -“(1)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.” 6.In line with established jurisprudence, courts have interpreted the aforementioned provisions in this way: In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR), the court summarised the following non-exhaustive principles:“30.The principles which can be culled out from the above-noted authorities are: -i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.” 7.Similarly, in the decision of the Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau, which has been cited in a line of court decisions, the court stated as follows on review applications.“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 will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law.” 8.In this case, the application was filed within one week of the issuance of the impugned ruling, thereby complying with Order 45, Rule 1 of the Civil Procedure Rules, which mandates that an application for review must be filed with the court that issued the decree or made the order without unreasonable delay. 9.Having met the first threshold, we shall proceed to ascertain the substance of the application. In this regard, and in accordance with the relevant law and principles, the plaintiff has contended that the basis for review rests on the assertion that this court committed an error apparent on the face of the record in failing to make any orders concerning the notice of motion dated 15 October 2025. The court finds that this ground for review is allowable, as it is self-evident and does not necessitate elaborate reasoning to establish. Essentially, it constitutes an error manifest on the face of the record. 10.Now, having considered the impugned ruling, this court agrees with the plaintiff that there was an error on the face of the record for failing to make any orders on the notice of motion dated 15 October 2025. 11.In the notice of motion dated 15 October 2025, which was the substance of the impugned ruling and was filed by Agnes Gathaiya, alias Joan Agnes Wairimu Gathaiya, and Peter Ndegwa Gathaiya, as executrix/executor of the deceased plaintiff who died during these proceedings, they sought orders that they be substituted for the deceased plaintiff and be made parties to the proceedings, with costs in the cause. The relevant provision of law on the substitution of a deceased party is found in Order 24 of the Civil Procedure Rules (CPR), and the pertinent Rules are:Order 24 Rule 3: -“(1)Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff:Provided the court may, for good reason on application, extend the time.”Order 24, Rule 7: -“(1)Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.(2)The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.” 12.In juxtaposing these provisions of the law to the reliefs being sought in the motion of 15 October 2025, it was clear that Agnes Gathaiya alias Joan Agnes Wairimu Gagathaiya and Peter Ndegwa were the deceased plaintiff’s legal representative per the grant of probate with a written will annexed dated 3 September 2025 issued in Nairobi HCSC NO. E466 of 2025 and thus, had the capacity to bring the motion. Further, Section 80 of the Law of Succession Act provides as follows: -“(1)A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.(2)A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.” 13.The deceased plaintiff died on 17 April 2025, and the motion of 15 October 2025 was filed on 16 October 2025, which was before one year had lapsed; in other words, the suit had not abated. Having moved the court without undue delay and in accordance with the law, there was no reason why the deceased plaintiff’s legal representatives would not be permitted to substitute the deceased plaintiff. The notice of motion dated 15 October 2025 was for allowance. 14.In the end, this court finds that the notice of motion dated 11 May 2026 is merited and the following final disposal orders are hereby issued: -The ruling dated 5 May 2026 is reviewed from paragraph 3 (a) onwards, and particularly, the last paragraph is to read as follows:“In the premises, the notice of motion dated 15 October 2025 succeeds, and the following final disposal orders are hereby issued: -a.That Agnes Gathaiya, alias Joan Agnes Wairimu Gathaiya, and Peter Ndegwa Gathaiya are made parties to these proceedings as the plaintiffs, in substitution of the deceased Daniel Joseph Gathaiya Njagi.b.Costs shall be in the cause”.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 19TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGE19.05.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Ngulukyo for 2nd and 3rd defendants.No appearance for other parties.