Kimuigei v Tegucho & 5 others (Environment and Land Case E006 of 2023) [2026] KEELC 3819 (KLR) (9 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ITEN** **ELC CASE NO. E006 OF 2023** **KIPROTICH KIMUIGEI........................PLAINTIFF/APPLICANT** **VERSUS** **MATHEW KIMAGUT TEGUCHO & 5 OTHERS…….** **….…………………………………......DEFENDANTS/RESPONDENTS** **RULING** 1. By a judgment delivered on 4th February 2025, this court dismissed the plaintiff/applicant’s suit on the ground that the applicant had failed to adduce evidence capable of proving his case to the required standard. 2. Blaming his advocate on record for lack of diligence and negligence in prosecution of his case and the court for failing to indicate whether hearing would be physical or virtual, having gaps or irregularities in the court proceedings and the court failing to ensure that its orders were complied with in prosecution of the case, the applicant filed the notice of motion (undated) but supported by an affidavit he swore on 6th November 2025 seeking:- 3. An order of review or setting aside the judgment and decree dated 4th February 2025; 4. Partial re-opening of the case to recall an independent surveyor to file their report; 5. Stay of execution of the judgment dated 4th February 2025. 6. The application is premised on the grounds that the applicant’s previous counsel was not diligent enough in prosecution of the applicant’s case; that owing to lack of due diligence and/or negligence of the applicant’s previous counsel, the applicant’s case was not well presented, in particular, evidence which ought to have been adduced in support of the respondent’s case and orders issued by the court were not complied with. The applicant also claims that there are gaps or irregularities in the court’s proceedings and faults the court for having failed to ensure that its orders were complied with in prosecution of the case. 7. Terming the alleged gaps or irregularities in the court’s proceedings errors apparent in the court’s record and the lack of due diligence on the part of his sufficient grounds for reviewing and/or setting aside the judgment of this court and re-opening the case for purpose of production of the evidence, which was in his possession but was not tendered before the court, the applicant urges this court to grant him the orders sought. 8. The application is opposed by the 1st, 2nd and the 3rd defendants/respondents on the grounds that the applicant has not met the condition for grant of an order for review in that the evidence sought to be produced does not constitute discovery of new and important matter or evidence which was not within the applicant’s knowledge at the time of trial; that the applicant was all represented by counsel all through; that there is no apparent error on record to warrant review as sought; that the report by the applicant’s independent surveyor cannot be a ground for review and that there is no error in the court’s judgment warranting interference with it. 9. Terming the application baseless, made in bad faith, lacking in merits and an abuse of the process of the court, the 1st, 2nd and the 3rd defendants/respondents urge this court to dismiss it with costs. 10. Pursuant to directions given on 8th December 2025, the application was disposed of by way of written submissions. 11. In his submissions dated 13th February 2026, the applicant makes reference to **Section 80** of the Civil Procedure Act, **Order 45** of the Civil Procedure Rules and several decided cases **(Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & 2 others (2020)e KLR, Rimber v. Unifresh Exotics (Kenya) Limited (Environment & Land Case 427 of 2017 (2025) KEELC 495 (KLR)** and submits as follows:- **“...The former counsel representing the plaintiff/applicant in the suit had appeared in open court on 25th September 2024 and took time allocation for hearing. However, the Court never indicated whether the hearing was to proceed virtually or physically. It was on that basis through Ms. Jepkemei, the former counsel later requested to virtually cross examine the respondent’s witness who was the County Surveyor and the same was denied by the court and the hearing proceeded physically in his absence despite having practice directions (2022) outlining that hearings can be conducted virtually or in open court....** **On the same hearing date, the County Surveyor noted that there were no markings on the report dated 3rd June 2024 and the court ordered them to avail a map with the said markings. The same was never availed to court and the court never followed up on the compliance of its order and the subject map with markings was never captured in the final judgment.** **It is our submission, that the denial by court for the plaintiff’s/applicant’s counsel to cross examine the County Surveyor and not following up on the compliance of the order by the County surveyor to avail a map with markings amounts to an error and/or omission apparent on the face of the record by this Honourable Court.”** 1. Based on his advanced age, a Senior Citizen of 88 years, the applicant submits that the court ought not to visit the mistakes of his counsel on him who failed to call his private surveyor, Philip Korir and to list his private surveyor’s report as part of his bundle of documents. 2. According to the applicant, the followings facts or circumstances of the case amount to sufficient reason(s) for granting the orders sought:- 3. Failure by his former counsel to cross examine the County Surveyor; 4. Failure by the court to follow up on compliance of its orders that the County Surveyor produces a map with markings and that the court never bothered to touch on that matter in its judgment; and 5. Failure by his former counsel to call a key witness, Philip Korir, who would have adduced evidence that would have altered the court’s discretion. 6. In view of the foregoing, the applicant urges the court to grant him the orders sought. 7. In their submissions dated 23rd March 2026, the 1st, 2nd and the 3rd defendants/respondents have identified the issue for the court’s determination to be whether the applicant has met the threshold for grant of orders of review and/or setting aside a judgment or order of court and based on the provisions of **Order 45** of the Civil Procedure Rules (which they have cited in extenso), submitted that there are three circumstances under which an order for review can be made. These are; the applicant must demonstrate to the court that there has been 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. Secondly, the applicant must demonstrate to the court that there was some mistake or error apparent on the face of the record; and thirdly, an application for review can be made based on any other sufficient reason. 8. The 1st, 2nd and 3rd respondents have pointed out that the applicant’s application is based on the ground that there exists an error apparent on the face of the court’s record and submitted that he has not pointed out any such error to warrant a review. Concerning the alleged mistakes of counsel, it is submitted that they cannot form a basis of the claim that there is an error apparent on record. The alleged failure of the court to allow the applicant’s counsel to cross examine a witness virtually are said to be unsubstantiated. It is further submitted, that it is clear the applicant was following up the court proceedings and did not at any point raise an issue pertaining the same. 9. Based on the decision in **National Bank of Kenya Ltd vs. Ndungu Njau Civil Appeal No. 211 of 1996 (UR)** and **Paul Mwaniki vs National Hospital Fund Board Management (2020)e KLR,** the 1st, 2nd and 3rd respondents have submitted that the errors alluded to do not amount to errors apparent on the face of the court’s record because they are not self evident and in essence the applicant is re-litigating his appeal. 10. As to whether there exists any other sufficient reason for granting the orders sought, the respondents have made reference to the case of **Tokesi Mambili & Others vs Simion Litsanga (2004)e KLR** and submitted that the expresssion “sufficient reason” means a reason sufficiently analogous to those specified in the rule. As to whether the alleged reasons relied on by the applicant are sufficient, the respondents submit that they are not for the following reasons:- 11. The report dated 2nd May 2024 was in the knowledge of the plaintiff who failed to avail it before court hence cannot claim that it is a discovery of new and important matter or evidence that was not within his knowledge; 12. That it is not in every case that a mistake committed by an advocate would be a ground for setting aside orders of the court. In this regard, reliance is placed on the case of **Savings and Loans Ltd vs Susan Wanjiru Muritu Nairobi (Milimani) HCC No. 397 of 2007** where **Kimaru J**. stated:- **“whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocate’s failure to attend court on the date the application was fixed for hearing, it is trite law that a case belongs to the litigant and not her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. it is the duty of the litigant to constantly check with her advocate the progress of her case...”** 1. The applicant has not demonstrated any tangible steps taken by him in following up his case; 2. That the applicant has not sworn an affidavit to confirm that he is indeed blaming his previous advocate or attached to the affidavit sworn in support of the application any such complaint; 3. The delay in bringing the application is inordinate and unexplained. 4. No cogent and credible evidence has been given by the applicant of any efforts or due diligence made by him in following up with his advocate to pursue his rights. 5. Terming the application an afterthought and lacking in merit, the 1st, 2nd and the 3rd respondents urge the court to dismiss it with costs to him. 6. I have read and considered the grounds taken up in support of the application, the opposition thereto by the 1st, 2nd and the 3rd respondents and the submissions filed by the parties to the application. I find the sole issue for the court’s determination to be whether the applicant has met the legal threshold for being granted the orders sought. 7. This being an application for review and/or setting aside the judgment of this court; for the applicant to be granted the orders sought, he must demonstrate that his application meets the following legal threshold set in **Order 45** of the Civil Procedure Rules; 8. The applicant must demonstrate to the court that there has been discovery of new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. 9. The applicant must demonstrate to the court that there was some mistake or error apparent on the face of the record; 10. Existence of any other sufficient reason. 11. As to whether the applicant has made up a case for being granted the orders sought, I have read and considered the grounds taken up in support of the application and found them to be incapable of forming the basis of grant of the orders sought for the following reasons:- 12. The alleged lack of due diligence in prosecution of the case by the applicant’s previous advocate is neither an error apparent on the court record nor a sufficient reason for grant of an order of review in the circumstances of this case; 13. That it has not been demonstrated that the report of the applicant’s private surveyor was brought to the attention of the applicant’s previous counsel and he deliberately or for any other ulterior motive failed to tender it in court; 14. The applicant is simply seeking an opportunity to patch up gaps in his case, long after the same was heard and determined on the basis of the case he presented in court; 15. The alleged gaps or irregularities in the proceedings of the court do not amount to an error on the face of the court’s record on which the applicant’s application for review can hinge; 16. The claim that the court refused to allow the applicant’s previous counsel to virtually cross examine a witness is neither an error apparent on the face of the court’s record nor a ground on which the application for review can hinge. If the applicant was aggrieved by any decision made by this court concerning his right to cross examine a witness, the right cause of action was to appeal and not to ask the court to sit on appeal against its decision. 17. In view of the foregoing, I find the application dated 6th November 2026 to be ill-advised and lacking in merits. Consequently, I dismiss it with costs to the 1st, 2nd and 3rd defendants/respondents who defended it. 18. Orders accordingly. **Ruling dated, signed and delivered virtually at Busia this 9th day of June, 2026.** **L. N. WAITHAKA** **JUDGE** **In the presence of:** N/A for the applicant Ms. Khayo for the 1st respondent Sikolia: Court Assistant