Kamau & 42 others v Leonid Ltd (Environment and Land Case 253 of 2015) [2026] KEELC 4412 (KLR) (13 July 2026) (Ruling)

Kamau & 42 others v Leonid Ltd (Environment and Land Case 253 of 2015) [2026] KEELC 4412 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4412 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 253 of 2015 A Ombwayo, J July 13, 2026 Between James Kamau & 42 others Applicant and Leonid Ltd Respondent Ruling 1.The Application before me is brought by way of a Notice of Motion dated 13th January, 2026 filed under a Certificate of Urgency seeking that the judgment delivered on this matter and orders on the 21st July 2022 be set aside and be reviewed and all the parties herein be given unconditional leave to prosecute and to defend her case based on new evidence. The applicant submits that the Application before this Honorable Court is for setting aside judgement of the court that was obtained after a full trial. The trial took place without the Applicant presenting one vital document which was not within their knowledge at the time of the trial and was not known or recoverable with due diligence at the time of trial or of pronouncement of the judgement. 2.Further, this vital information was not available or discoverable even with due diligence at the time of trial and hence they could not produce it. It is clear from the pleadings that the ownership of the suit property was an issue for determination on this suit. 3.It also become clear that the Kenya National Highway Authority had interest on the suit property and had petitioned the National Land Commission for an enquiry to determine the right owner of the suit property. The said suit plots, the national land commission could not determine the actual owner of the same hence this application. 4.The applicant submits that an Order for a stay of execution allows a party to a suit to halt the proceedings of a judgment and to stay the execution of a judgment of a court and therefore such an application should be made before the presiding court for orders to preserve the subject matter. The Applicants came to know of the existence of a new and important evidence relevant on this suit after a full trial and judgement delivered and wish to have the same considered before a final judgement is delivered. 5.The judgment was delivered on 21st July, 2020 and the applicant wishes to be granted leave to file pleadings and participate in the suit. To set aside or not to set aside is a matter of the court's discretion and the court must be given sufficient ground to enable it to exercise its jurisdiction. 6.The applicant argues that the courts have unlimited discretionary power to set aside or vary judgments with the main aim of being that justice should prevail and such discretion shall be exercised to avoid injustice or hardship resulting from accident, inadvertence, and excusable mistake or error. The prayers sought on the application before the court are prayers where the court is called upon to exercise its discretional powers and the principle guiding the exercise of desertion by the court or in other words for a court to exercise its discretionary power 7.In general, the exercise of discretion and independent judgment involves comparison and the evaluation of possible causes of conduct and acting or deciding after the various possibilities have been considered. According to the applicant, the discretion of the court to set aside or vary judgment is exercised to avoid injustice or hardship but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice. 8.The applicant further submits that the Respondent has not stated or demonstrated that if the orders sought are granted then they will suffer any prejudice. The applicant has duly complied with all the legal requirements to have orders sought be granted in his favor and therefore urges this Honorable Court to exercise its discretion in favor of the applicant and allow the application. 9.The defendant/Decree Holder on his part submits that the basic facts that precede the instant application are that vide a judgment rendered on 21st September, 2020. The Plaintiff's suit was dismissed, and the Defendant's counterclaim was allowed whereby tie Plaintiffs were ordered to vacate the suit premises within 90 days of delivery of the judgment. Aggrieved by the decision, the Plaintiff filed an appeal on the 6th of October 2023 through MOMBASA COURT OF APPEAL CIVIL APPEAL 27 OF 2021. The appeal was determined on the 6th of October 2021 whereby it was dismissed. The Defendants have moved to apply for execution of the Decree and determined to prevent the execution, the 4th Defendant moved to file the instant application. The Applicant basically seeks for review on the apparent ground of discovery of new evidence. 10.The respondent contends that the application offends order 9 rule 9. This is because the Advocate that represents all the Plaintiffs is the firm of Martin Tindi and company advocates. Prior to filing the instant application, the firm of Mkan and company advocates merely filed a notice of appointment of advocates. It is key to note that judgement in this matter has already been rendered and an appeal thereto has been concluded. Order 9 Rule 9 of the Civil procedure Rules provides that:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.Upon an application with notice to all parties;b.Upon a consent files between the outgoing advocate and the incoming advocate or party intending to act in person as the case maybe.” 11.Order 9 Rule 5 further provides that:“A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served…the former advocate shall…be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.” 12.According to the respondent, it can clearly be seen from the above provisions that once judgement is rendered, the Advocate whom represented a party at the trial Court shall be deemed to be the Advocate of record for that party and shall continue being so until a change is formally effected vide an order of the court, which is subject to an application being filed or through a consent between the outgoing advocate and the incoming advocate. Furthermore, a notice of change of advocates has to be filed. In the instant matter, neither process was undertaken. 13.The importance of compliance with the above provisions and the consequences of failure to comply were underscored in the case of S.K. Tarwadi V Veronica Muehlemann [2019] EKLR where the Court stated that:“In my view, the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away. Indeed Order 9 does not foresee how Rule 9 can be sidestepped hence the enactment of Rule 10 as follows:“An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.” 19.The excuse by the Applicant that his advocate was in a hurry to ask for extension of time in order to comply with the conditions in the ruling of 30th June, 2017 and could therefore not comply with the requirements of Order 9 Rule 9 CPR is therefore without merit. The Applicant's new advocate was allowed by Rule 10 to apply for extension of time to comply with the conditions of the trial court and at the same time comply with the requirements of Rule 9.” 20.Also in the case of Kenya Petroleum Refineries Limited V Ngoa & 53 Others (environment & Land Case E001 OF 2025) [2025] KEELC 4241 it was held as follows:“In view of the findings above, the firm of Ms. Khatib & Company Advocates is not properly 21.on record for the defendants. The end game for the plaintiff's preliminary objections is to have the defendants' application dated the 13th February 2025 struck out for having been filed through counsel not properly on record and or a stranger.“In the foregoing, it can be seen that the subject Application is in contravention of a fundamental legal procedure which as a result renders the Application fatally defective. The same therefore ought to be struck out for that reason.…The instant application is incapable of being salvaged through amendments, because it was filed through a stranger or advocate not properly on record, and their prayer for leave to come on record for defendants has been declined. The court therefore upholds the plaintiff's preliminary objection.” 22.The applicant contends that the subject Application is in contravention of a fundamental legal procedure which as a result renders it fatally defective. The same therefore ought to be struck out on that score. The applicant argues that the application offends Section 80 of the Civil procedure Act and Order 45 Rule 1 of the Civil procedure rules as the Plaintiff have already pursued the avenue of appeal to the Court of appeal vide MOMBASA CIVIL APPEAL NO. 27 OF 2021 and the appeal was heard and determined on the 6th of October 2021. Section 80 of the Civil Procedure Act provides for review and 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 is preferred; orb.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.” 23.Order 45 Rule 1 of the Civil Procedure Rules rehashes the above provision but also sets out the grounds for review. It provides that:“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; orb.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.” According to the said provision, it is not available for a party to pursue both an appeal and a review application. This legal position was authoritatively set out by the Court of Appeal in the case of Otieno, Ragot & Company Advocates V National Bank Of Kenya Limited [2020] KECA 894 (KLR) as follows:“It is not permissible to pursue an appeal and an application for review concurrently. If a party chooses to proceed by way of an appeal, he automatically loses the right to ask for a review of the decision sought to be appealed.” 24.Therefore, the Plaintiffs having already pursued the appellate process, the process of reviewing the said Decree is unavailable to them. In those circumstances, the subject Application is accordingly incompetent. 25.The applicant submits that the application does not meet the required guidelines to merit a review of the judgement. The evidence that Applicant claims is a gazette notice that was issued in 2024, showing the National land commission giving a notice of hearing for compensation claims for interested parties on land requiring for dualling of Mombasa- Mariakani highway. That the gazette notice of 2024 showing that the said hearings occurred on 15th October 2024-17th October 2024. Other than it not being new evidence, the same is now redundant and of no use as the stated hearing have already been undertaken. That the apparent evidence provided is not an important matter of evidence. The dispute during trial was that the Plaintiffs sought to obviate the Defendant's title through adverse possession. The suit was dismissed. The Applicant has not showed how the said gazette notice would have affected the Court's determination in affecting the claim for adverse possession. 26.The subject application is made in bad faith as the Applicant just filed the same at the time the Defendant is proceeding with the process seeking to execute the judgement due to the Plaintiffs' refusal to hand over vacant possession of the suit property. The Plaintiffs have tried and failed on numerous accounts to obtain ownership of the subject property, and the current application for review is simply another tactic by the Plaintiffs to protract this litigation in order to frustrate the Defendant from enjoying its fruits of judgment. In the foregoing, as no sufficient cause has been tendered as to why the judgment should be reviewed. The defendant prays that application be dismissed with costs and the Defendant be allowed to continue with the execution. 27.I do agree with the respondent that the firm of Tindi and advocates has not obtained the leave of court to come on record and therefore the proceedings are a nullity. The importance of compliance with the above provisions and the consequences of failure to comply were underscored in the case of S.K. Tarwadi V Veronica Muehlemann [2019] EKLR where the Court stated that:“In my view, the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away. Indeed Order 9 does not foresee how Rule 9 can be sidestepped hence the enactment of Rule 10 as follows:“An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.” 19.The excuse by the Applicant that his advocate was in a hurry to ask for extension of time in order to comply with the conditions in the ruling of 30th June, 2017 and could therefore not comply with the requirements of Order 9 Rule 9 CPR is therefore without merit. The Applicant's new advocate was allowed by Rule 10 to apply for extension of time to comply with the conditions of the trial court and at the same time comply with the requirements of Rule 9.” 28.The review of a judgment is governed by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Applications must be filed without unreasonable delay before the same court that issued the decision. The core legal principles for review demand specific, strictly defined grounds. 29.The fundamental principles for reviewing a judgment are that there must Discovery of New Evidence. An applicant must show the discovery of new, vital evidence that—despite exercising due diligence—was not available or within their knowledge when the original judgment was made. Error Apparent on the Face of the Record: The mistake must be self- evident and obvious, such as a miscalculation or reliance on a repealed law. It cannot involve re-opening the entire case or debating the judge's reasoning. Any Other Sufficient Reason. The court possesses residual discretion to review its decision to prevent a gross miscarriage of justice, though this is exercised highly sparingly. No Pending Appeal or previous appeal: Review cannot be used as a substitute for an appeal. It is only applicable if no appeal has been filed, or if the order is one from which no appeal is allowed. Where an appeal has been determined, a review is not allowed. 30.I have considered the application and rival submissions and do find that the application has been filed with unreasonable delay the judgment having been delivered in 2020. The alleged discovery is of evidence that was created after judgment and therefore the same is important and yet the application is being made on 13th January 2026, approximately six years after judgment. The alleged new and important evidence was discovered in the year 2024, but the application was filed more than one year after the discovery of the evidence. The alleged important evidence should have existed before judgment and not after judgment. The evidence before me is that the evidence was created in 2024 and therefore cannot be applied to review a judgment of 2020. The application has no merit and is dismissed with costs. SIGNED BY/FOR: THE JUDICIARY OF KENYA