https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4838

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. E012 OF 2023** **GABRIEL NJUE JOSEPH.................................................PLAINTIFF** **VERSUS** **MARITINO NJIRU NAMU...............1ST DEFENDANT/APPLICANT** **DANIEL IRERI NAMU.....................2ND DEFENDANT/APPLICANT** **ANDREW IRERI NJERU..............INTERESTED PARTY/APPLICANT** **RULING** Before the Court is the Notice of Motion Application dated 4th July 2025 brought under Order 45 Rules 1 and 2 of the Civil Procedure Rules. The Applicants seek orders that the ruling delivered on 9th May 2025 be reviewed and/or set aside, that the Notice of Motion dated 16th February 2024 together with the plaint, defence and counterclaim be heard afresh, and that this Court recalls the records in Objection Cases Nos. 103 and 130 of 1973–1974 to rectify what the Applicants describe as mistakes committed by the Land Registrar, Siakago. They also pray for costs. The application is premised on the grounds that the Notice of Motion dated 16th February 2024 and the suit had never been heard, that the defence and counterclaim were struck out without evidence, that there exist pending appeals before the Court of Appeal touching on the suit properties, and that the land in dispute was allegedly acquired through fraud. The Plaintiff opposed the application through a Replying Affidavit sworn on 23rd September 2025. He contends that the application does not satisfy the requirements for review under Order 45 of the Civil Procedure Rules. He deposes that the Applicants were duly served with a hearing notice and directions requiring them to file written submissions but failed to do so. According to the Plaintiff, the Applicants cannot now claim that they were denied a hearing. He further argues that this Court has no jurisdiction to recall files in proceedings concluded over five decades ago, particularly where neither the Plaintiff nor the present proceedings arise from those cases. He therefore urges the Court to dismiss the application as an abuse of the court process. The Applicants, who appeared in person, filed written submissions substantially reiterating the contents of their application and supporting affidavit. Having considered the application, the affidavits on record, the submissions and the applicable law, the sole issue for determination is whether the Applicants have satisfied the legal threshold for review under Order 45 Rule 1 of the Civil Procedure Rules. Order 45 Rule 1 permits a court to review its decree or order only where an applicant demonstrates discovery of new and important matter or evidence which, despite exercise of due diligence, was not within his knowledge or could not be produced at the time the order was made; or where there is a mistake or error apparent on the face of the record; or for any other sufficient reason. An application for review must also be made without unreasonable delay. The principles governing review jurisdiction are well settled. In **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR**, the Court of Appeal held that review is not available merely because a party believes the decision is erroneous. An erroneous conclusion of law or fact is a proper ground for appeal and not review. Similarly, in **Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR**, the Court of Appeal reiterated that review is a limited jurisdiction and cannot be invoked to enable a court sit on appeal over its own decision. The Applicants have not demonstrated the existence of any discovery of new and important evidence that was unavailable despite due diligence when the ruling of 9th May 2025 was delivered. They merely repeat arguments relating to the merits of the dispute and express dissatisfaction with the outcome reached by the Court. Equally, no error apparent on the face of the record has been demonstrated. An error apparent must be self-evident and should not require elaborate argument or extensive examination of the record to establish. The Applicants merely contend that they were not heard before the impugned ruling was delivered. However, the Plaintiff has exhibited evidence showing that the Court directed the application to be disposed of by way of written submissions and that the Applicants were duly served with the hearing notice requiring them to file and serve their submissions. The ruling itself acknowledged that only the Plaintiff complied with those directions. The Applicants did not rebut the evidence of service nor deny receiving the Court's directions. The right to be heard does not entitle a litigant to ignore lawful directions of the Court and thereafter allege denial of a hearing. Once a party has been afforded an opportunity to present his case and elects not to utilise that opportunity, the requirements of fair hearing under Article 50 of the Constitution are satisfied. A party cannot deliberately fail to participate in proceedings and later seek review on that basis. The Applicants have also relied on the existence of Court of Appeal matters. However, they have neither demonstrated the relevance of those appeals to the ruling sought to be reviewed nor exhibited any order staying these proceedings. The mere existence of separate appellate proceedings does not constitute a ground for review under Order 45. The prayer seeking recall of the records in Objection Cases Nos. 103 and 130 of 1973–1974 is equally untenable. Review proceedings are confined to the decree or order sought to be reviewed. They cannot be converted into a forum for reopening unrelated proceedings concluded decades ago, particularly where no legal basis has been established and where the Plaintiff was admittedly not a party to those proceedings. The Court cannot exercise jurisdiction over files that are neither before it nor the subject of the impugned ruling. Further, the Applicants' allegations that the suit properties were fraudulently acquired under Section 26 of the Land Registration Act concern the substantive merits of the dispute. Such issues can only be determined upon production of evidence during trial where appropriate, and not through an application for review. A review application is not intended to reopen or re-litigate issues that ought to be canvassed in the main proceedings or on appeal. From the material placed before the Court, it is evident that the Applicants are dissatisfied with the conclusions reached by the Court in its ruling of 9th May 2025. Their grievances challenge the correctness of that decision rather than identifying any of the statutory grounds for review. Such dissatisfaction properly belongs to the appellate process and not to the review jurisdiction of this Court. In the premises, I find that the Applicants have failed to establish discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason to warrant interference with the ruling delivered on 9th May 2025. The application therefore falls short of the threshold prescribed under Order 45 Rule 1 of the Civil Procedure Rules. Accordingly, the Notice of Motion dated 4th July 2025 is without merit and is hereby dismissed with costs to the Plaintiff/Respondent. It is so ordered **DATED, DELIVERED AND SIGNED AT EMBU THIS 27TH DAY OF JULY, 2026** **………………………………** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. M/S Fatuma for the Plaintiff/Respondent 2. Defendants/Applicants-absent 3. Ruth C/A