https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3390

Hari v Highlands Homes Investments Co Ltd (Environment and Land Case E001 of 2026) [2026] KEELC 3390 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3390 (KLR) Republic of Kenya In the Environment and Land Court at Nyandarua Environment and Land Case E001 of 2026 JM Kamau, J May 28, 2026 Formerly Nyeri HCCC 400/1986 Between Jane Mwihaki Hari Plaintiff and Highlands Homes Investments Co Ltd Defendant Ruling 1.On 25/9/2009 this Court sitting in Nyeri ordered as follows: -1.That the Plaintiff/Respondent, her agents, servants and/or employees and trust be evicted from the premises situate at land plot No. Nyandarua /Miharati Township/73 upon the Applicant issuing to the Respondent a seven-day final Notice to vacate.2.That the officer commanding Miharati Police Station to facilitate the eviction in consultation with the District Officer, Kipipiri Division.3.That the Respondent do sign transfer forms transferring the land plot No. Nyandarua /Miharati Township/73 in favour of the Applicant and failure thereof within two weeks upon service of this order the Deputy Registrar of the High Court to sign all the necessary Documents to effect the transfer. 2.This Order was resultant of the Application dated 3/4/2009 heard by the Honourable Mr Justice Sergon on the 25/9/2009. In the said Application the Applicant, Highland Investments Co. Ltd. was urging the Court to effect the Judgment of the Court of eviction from Nyandarua /Miharati Township/73 against the Defendant. 3.In the Supporting Affidavit of Boniface Philip Mbae Kimemia, Director of the Defendant sworn on even date where the Plaintiff, Jane Michuki Hari had tried to dispossess the Defendant from the suit land which was the subject matter of the suit but which case was dismissed by the Court on 11/1/1994 Mr. Kimemia deponed that she had been in occupation of the land where she had been collecting rent from a tenant but that on 31/10/2001 the Defendant issued a Notice to vacate and to terminate the sitting tenant, Paul Muthee Mwangi. 4.The latter filed a Reference in the Business Premises Rent Tribunal which was dismissed and the Tribunal ordered that the Notice to vacate be re-issued. Thereafter the Plaintiff convinced the sitting tenant to be paying rent directly to her and the said tenant has accordingly been paying rent as advised since 2005 hence hindering the Defendant from her rightful enjoyment of her Judgment and has been denied rents from the premises. 5.It is out of this Application that the Plaintiff prays: -1.That the orders of 25/9/2009 be stayed and that this Court be pleased to review, set aside and/or vacate its orders of 25/9/2009.2.That the Land Registrar, Nyandarua be ordered to deregister and cancel entry No. 3 in the Register of L.R No. Nyandarua /Miharati Township/73 made pursuant to the order issued on 25/9/2009 and that in the alternative.3.The ex-parte orders issued on 25/9/2009 be set aside and the Plaintiff be granted unconditional leave to defend the Notice of Motion dated 3/4/2009.4.Costs be provided for. 6.The reasons for the Application advanced on the face of the Application are that: -a.There is discovery of new and important material and evidence which was not within the knowledge of the Plaintiff at the time of making the orders on 25/9/2009 and 15/4/2025.b.There is a mistake and error apparent on the face of the record.c.The discovery made on 10/5/2021 was that the Defendant was non-existent and was not registered at the time of granting the orders since she was registered on 22/5/2020 being after the Court orders about 11 years.d.That the Plaintiff has a good Defence to the Motion dated 3/4/2009.e.That the failure to file a Replying Affidavit to the Motion was occasioned by Waithaka Wachira & Co Advocates, for the Plaintiff, her previous Advocates who had been instructed to defend the Application but failed to do so.f.The Plaintiff only gained knowledge of the orders of 25/9/2009 on 9/1/2019 and that the mistakes of the Advocates should not be visited on her. 7.In the Affidavit in Support of the Application, the Plaintiff depones that there was an Application similar to the current one dated 18/9/2019 but which was dismissed on 15/4/2021. After this Application was dismissed, the Applicant did a search which revealed that the Defendant was registered on 22/5/2010. 8.In the Replying Affidavit of Nelson Ngunjiri Murigu, a Director of the Defendant/company sworn on 10/9/2021, the said Director depones that the Defendant company was registered on 26/4/1975 and even attached a copy of the Certificate of Incorporation and Articles of Association and accordingly, the Plaintiff has been engaging in falsehoods and half-truths and is therefore unbelievable. 9.I then invited the parties herein to file their written submissions before I retired to write this Ruling. 10.To begin with, the Orders granted by this Court sitting in Nyeri on 25/9/2009 were consequential to a Judgment delivered by the same Court on 11/1/1994. The Judgment still stands. It has never been challenged by way of Appeal, Review or in any other way. As long as the said Judgment stands whose effect was to evict the Defendant from Nyandarua /Miharati Township/73 the current Application is bad in law. The Orders made on 25/9/2009 which the Defendant seeks that they be varied were actually made in the aforesaid Judgment. The Orders sought in the current Application is to review the Orders in the Application dated 25/9/2009 without interfering with the Judgment the main reason being that the Plaintiff did not exist as at the time of the making of the Orders. If that is true even at the time of filing the suit then the Plaintiff never existed and even in the B.P.R.T. Secondly, the Applicant tells the Court that this was not discovered until after the said order was made. 11.The Applicant states that there was discovery of new and important material and evidence which was not within the knowledge of the Plaintiff at the time of making the said orders on 25/9/2009 and 5/4/2021. Assuming this is the case that the Applicant had not discovered these, the law does not state the non-discovery of new material or evidence. It goes ahead to require that the material or evidence would not have been discovered after due diligence. What due diligence did the Applicant apply to find out whether the Respondent had been registered by the time of the Judgment or of the making of the orders of 25/9/20029? 12.All that the Defendant had to do is to enquire by way of a search at the company Registry under the Registrar General’s Office of the Attorney General at Sheria House to find out whether Highlands Homes Investment Co. Ltd. was a registered company or not. This is what due diligence is all about. But even more important is that the Applicant got it all wrong. Although the Registrar of Companies records show that the date of registration of the Respondent is 22/5/2010, her certificate of Registration shows clearly that the Respondent was registered on 26/4/1975. And moreover, what the Plaintiff says on the face of Application that the date of registration of the Defendant 22/5/2020 does not tally with what is in the search record – 22/5/2010. 13.Both Documents are from the same office. Which one is to be believed? I believe the Certificate is to be taken more seriously because it is the most basic and primary document. But even if there would be doubt as to which is to be believed, what the Applicant searched on 10/5/2021 could have been searched before the Plaintiff filed the suit. Due diligence should have established this. Further, she is the one who sued the Respondent and described her as a limited liability Company way back on 24/10/1986. She can therefore not come to Court and deny that the person she sued and who entered appearance and filed Defence is not the one she intended to sue. Where had she got this information from that the Defendant is a limited liability Company. 14.On the second issue that there is a mistake and on the face of the record, the same is unsubstantiated and I don’t see any. 15.On the issue of the Plaintiff not having filed a Response to the Application by way of Notice of Motion dated 3/4/2009 blaming it on the failure of the firm of Waithaka Wachira & Co Advocates to defend the Application whose mistakes of not filing a Replying Affidavit and not attending the Hearing and not informing her of the outcome should not be visited on her, I have already made myself clear on this point in Nyandarua ELC Petition No. 2 of 2023 as follows:-……………I don’t think I can buy such narrative. It is very common and almost natural to blame a previous Advocate and stack all praises on the current Advocate using such phrases such as: -“............... I have been informed by my Advocate on record which information I believe to be true that....................”And that: -.......................the sins of an Advocate should not be visited on his client………….......”It is the high time that Courts should think twice about this often-quoted phrase. If indeed the client was misled by her previous Advocates, this is a very serious accusation that goes to the root of the professional competence of the Advocate. Then he ought to name the said Advocate in the current Application as an interested party so that the latter can clear his name. Which Advocate would want to be associated with such an accusation that would taint the professional competence and credibility of his firm……………………” 16.As to the time that this Application was brought in Court, it has taken the Applicant 5 years from the delivery of the order that she seeks to review or set aside to the time that the current application is made. Such an inordinate delay is inexcusable and the same could prejudice the Respondent who may even have forgotten about the case or its facts. The Application is accordingly dismissed with costs. RULING READ DATED, SIGNED AND DELIVERED AT NYANDARUA THIS 28TH DAY OF MAY, 2026.MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: Samson.Plaintiff’s Counsel: Mr. Gakenia.Defendants’ Counsel: Mr. Gathiga Mwangi.