https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5118

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. 62 OF 2019** **GRECORY MASAKHA WAFULA……..…………………. APPLICANT** **-VERSUS-** **WASIKE TATIM KASSIM……………………….….1ST RESPONDENT** **PIUS WANYAMA WENI……………………………2ND RESPONDENT** **RULING** **Introduction** 1. Before this court is a Notice of Motion filed by the plaintiff and dated 23rd August 2024 brought under the provisions of Order 45 Rule 1 of the Civil Procedure Rules, in which he seeks the following orders: 2. **That the orders made by this Honourable court on 9th May 2023 be stayed and or varied.** 3. **That leave be granted to the applicant to introduce and adduce evidence and other documents attached as at paragraph 6(a)-(f) of the applicant’s supporting affidavit be deemed as evidence properly on record for purpose of guiding the court on final orders in this matter.** 4. **The costs of this application be provided for.** 5. The application is premised on the grounds set out on its face and is supported by the affidavit of the applicant sworn on 23rd August 2024. The applicant depones that he instituted this suit in the year 2006 and that during the hearing conducted in 2021, although he had filed documentary evidence, he was unaware of the procedure for formally producing the documents during the hearing, having represented himself. Consequently, he closed his case without producing the said documents and judgment was subsequently entered against him. He contends that the court found that his allegations of fraud had not been proved due to the absence of documentary evidence. He further depones that although he initially intended to appeal against the judgment, he later realized that the failure to produce the requisite documents had occasioned the dismissal of his claim. He therefore seeks leave to introduce the documents, which he contends constitute new and important evidence, and prays that the matter be reopened to enable the court determine the dispute on its merits. 6. The application is opposed. The respondent filed Grounds of Opposition dated 30th January 2026 contending that this court is *functus officio*, that the suit having been heard and finally determined. It is further contended that there is no pending suit in which additional evidence may be introduced and that the applicant has not demonstrated any legal basis for reopening the proceedings. The respondent also argues that the application has been brought after inordinate delay and is therefore defeated by the doctrine of laches. Further, it is contended that the documents sought to be introduced were always within the applicant's knowledge and could, with the exercise of due diligence, have been produced during the hearing. 7. The application was canvassed by way of written submissions. The applicant filed submissions dated 7th July 2026 while the respondent filed submissions dated 22nd April 2026, both of which this court has duly considered. **Analysis and determination** 1. The court has carefully considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition, the rival submissions. In the court’s considered view, the issues arising for determination are whether the applicant has established sufficient grounds to warrant the review of the judgment of this court and whether he should be granted leave to adduce additional evidence after the delivery of judgment. 2. The jurisdiction of this court to review its own judgment or orders is conferred by Section 80 of the Civil Procedure Act, which provides as follows: ***“Any person who considers himself aggrieved—*** 1. ***by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*** 2. ***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.”*** 3. The conditions upon which the court may exercise its review jurisdiction are set out under Order 45 Rule 1 of the Civil Procedure Rules, 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.”*** 1. A reading of the foregoing provisions shows that review is a limited and exceptional remedy. An applicant must demonstrate that the matter relied upon falls within the statutory grounds and that the application is not an attempt to re-open the case, fill gaps in evidence, or mount an appeal in disguise. 2. To obtain review, an applicant ought to demonstrate that there is discovery on new and important evidence which could not be produced at the hearing even upon exercise of due diligence or that there is an error apparent on the face of the record or that there is a sufficient reason. 3. In discussing the issue of review, the Court of Appeal in **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR** stated as follows; “***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 a 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 proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”*** The court further held: “***In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.”*** 1. Similarly, the Court of Appealin**Ndungu Njau v National Bank of Kenya Limited [2008] KECA 188 (KLR)** held that review is not an appeal in disguise and cannot be used to enable a party to re-open a case merely because it failed to present its case properly by stating as follows; ***“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.”*** 1. In the instant case, the applicant argues that he did not know when and how to produce his evidence during hearing as he is a lay person and represented himself in this matter. 2. The applicant is simply stating that he failed to avail his evidence due to ignorance. It is trite that ignorance of the law is no defence. In this matter, the case was heard by this court on merit and judgment delivered on 9th May 2023, whereof the court dismissed the plaintiff’s case with costs. The application herein was filed on 23rd August 2024. That is a period of one year and three months from the date of judgment. In my view, that delay is inordinate and no explanation for the delay has been provided. 3. The reasons given for the prayer for review are that the plaintiff was ignorant of what needed to be done. That reason does not fall within the conditions set out in Order 45 Rule 1 of the Civil Procedure Rules. The evidence sought to be produced on reopening of the case was within the applicant’s knowledge at the time of trial. Therefore, the prayer for review of judgment fails. On that basis, the prayer for adduction of supposed new evidence is now moot and therefore unworthy of interrogation. In the premises, I find and hold that the application dated 23rd August 2024 lacks merit and the same is hereby dismissed with costs. 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 22ND DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Applicant in person Ms Cherono holding brief for Mr. Nandwa for the respondents Court Assistant- Delphine