https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5138

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CASE NO. 682 OF 2014** **SUKHDEV SINGH LALY ………………………….…………………PLAINTIFF** **=VERSUS=** **MAGNATE VENTURES LIMITED ……………………………… DEFENDANT** **RULING** 1. By a Notice of Motion dated 28th October 2024, brought under Sections 1A, 1B, 3A, and 80 of the Civil Procedure Act, Order 45 Rules 1 and 2, and Order 51 Rule 1 of the Civil Procedure Rules, the Defendant/Applicant seeks the following orders: 1. ***THAT this Honourable Court be pleased to vary, review and/or set aside the Judgment of Justice Mogeni J delivered on 23rd May 2022, declaring that the Defendant had trespassed upon the Plaintiff's property and awarding the Plaintiff general damages of Kshs. 5,000,000/- for the said trespass together with interest and costs of the suit.*** 2. ***THAT this Honourable Court do order that the Plaintiff pay to the Defendant the following sums duly paid out to the Plaintiff in satisfaction of the said Judgment, its Decree and subsequent orders with interest from the date of payment:*** 1. ***Kshs. 432,872/= being the taxed Party and Party costs paid on 16th May 2023.*** 2. ***Kshs. 5,112,392/= being the general damages awarded plus interest released on 4th October 2023.*** 3. ***Kshs. 66,500/= being further court fees paid on 5th October 2023.*** 4. ***Kshs. 705,492/= being interest on the general damages awarded paid on 6th November 2023.*** 3. ***THAT this Honourable Court do order that the Plaintiff pay to the Defendant the sum of Kshs. 1,200,000/= paid to the Plaintiff on 8th July 2024 as licensing fees based on the said Judgment with interest from the date of payment.*** 4. ***THAT this Honourable Court do grant any other or further Orders as it may deem fit in the interests of justice.*** 5. ***THAT the costs of this Application be provided for.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Maureen Wakahia, the Defendant’s Manager, Legal Affairs, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that on 23rd May 2022, Hon. Lady Justice Mogeni delivered a judgment finding that the Defendant had trespassed on the suit property known as Title Number Nairobi/Block 93/1429 and awarded the Plaintiff general damages of Kshs. 5,000,000/=. 2. She stated that the Defendant had recently discovered new and important evidence affecting the propriety of the judgment, which necessitated the application for review. 3. She averred that the judgment was based on the finding that the Plaintiff is the legitimate and rightful owner of the suit property with a good title. 4. She further averred that the Defendant made the following payments to the Plaintiff in satisfaction of the judgment: Kshs. 432,872/= in taxed party and party costs on 16th May 2023; Kshs. 5,112,392/= in general damages plus interest on 4th October 2023; Kshs. 66,500/= in further court fees on 5th October 2023; Kshs. 705,492/= in interest on general damages on 6th November 2023; and Kshs. 1,200,000/= in licensing fees on 8th July 2024. 5. The deponent asserts that during the pendency of the suit, the Certificates of Official Search indicated the Plaintiff as the registered owner of the suit property. She argued that, despite exercising due diligence, the Defendant was unable to produce evidence to challenge the Plaintiff’s ownership at the time of the hearing. 6. She stated that during the hearing, the Defendant attempted to challenge the Plaintiff’s title by requesting a site visit, which was denied, and by presenting evidence that the property was on a road reserve, as annual licensing fees were paid to Kenya National Highways Authority and the County Government of Nairobi, as noted in paragraphs 18 and 19 of the judgment. However, the Court did not consider this evidence significant and ruled in favour of the Plaintiff’s title. 7. She averred that on 24th April 2024, this Court delivered judgment in **Luthra & 5 Others v Laly & 11 Others (ELC No. 133 of 2019) KEELC 3317 (KLR),** holding that the Plaintiff was not the lawful owner of the suit property and that the property had reverted to the government on 29th July 2011. 8. She stated that the Defendant only recently became aware of the judgment in Luthra & 5 Others v Laly & 11 Others, which directly undermines the basis of this Court’s judgment, namely, the Plaintiff’s ownership of the suit property. 9. She contended that the judgment constitutes new and important evidence that was not within the Defendant’s knowledge at the time of the hearing and could not have been produced despite exercising due diligence. 10. She asserted that the judgment in Luthra & 5 Others v Laly & 11 Others was based on Gazette Notice No. 9229 of 29th July 2011 (Vol. CXIII- No. 72). She noted that the Gazette Notice did not cancel the title to the suit property but revoked Property Title Number Nairobi/Block 93/1427, thereby constituting new and important evidence. 11. She argued that the Defendant would suffer prejudice if the judgment is not varied, reviewed, or set aside, as it was legally and evidentially unsupported. She maintained that the Defendant would suffer substantial loss, having already paid the decretal sum and continued to engage the Plaintiff as its licensor under a Licence Agreement. 12. She contended that the application was filed without undue delay, and urged the Court to grant it in the interest of equity and justice. **THE RESPONDENT’S CASE** 1. The Plaintiff/Respondent filed a Replying Affidavit sworn on 16th March 2026 in opposition to the application. He argued that the application is scandalous, vexatious, frivolous, fatally defective, and an abuse of the Court process. 2. He argued that the judgment in ELC Suit No. 133 of 2019 relied upon by the Defendant contained an error apparent on the face of the record as the Court relied on Gazette Notice No. 9229 of 29th July 2011, in finding that his parcel of land, Title Number Nairobi/Block 93/1429, had been revoked, whereas the correct position was that the said Gazette Notice revoked Block 93/1427 and not Block 93/1429. He urged the Court to take judicial notice of the said Gazette Notice to verify that it only referred to the revocation of Block 93/1427. 3. He stated that due to the error in judgment in ELC No. 133 of 2019, he filed an application on 16th October, 2025, seeking a review of the Court's decision, which is currently pending determination. 4. He argued that since the judgment on which the Defendant based their review request is itself under review, this Court cannot consider or rule on the Defendant's application. 5. He asserted that there is a possibility the judgment in ELC No. 133 of 2019 will be reviewed, amended, and varied with the error corrected, and that such an outcome would completely change the legal basis of the application before this court. 6. He accordingly urged the Court to hold the application in abeyance pending the hearing and determination of his review application in ELC No. 133 of 2019, to avoid conflicting decisions by Courts of concurrent jurisdiction, prevent wastage of Court time, and guard against an erroneous finding resulting from a misapprehension of material facts. 7. He argued that he would suffer financial prejudice if the orders sought are granted. In conclusion, the deponent urged the Court to dismiss the application with costs. 8. The application was canvassed by way of written submissions. **THE DEFENDANT/APPLICANT’S SUBMISSIONS** 1. The Defendant filed its submissions dated 10th April 2026. 2. On behalf of the Applicant, Counsel submitted that the legal framework governing review is outlined in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, which provides that a party may apply for review upon discovering new and important matter or evidence which, after exercising due diligence, was not within his knowledge or could not have been produced at the time the decree was issued, due to some mistake or error apparent on the face of the record, or for any other sufficient reason, provided that the application is made without unreasonable delay. 3. Relying on **Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR),** Counsel submitted that the grounds for review are limited. Counsel further submitted that an incorrect interpretation of evidence or law does not constitute a valid ground for review, although it may be a ground for an appeal. Further reliance was placed on **Wairicu Francis v Robert Gikonyo Ngige [2020] eKLR**, where it was held that review based on the discovery of new evidence requires the applicant to demonstrate that the material constitutes new and important matter that was not within its knowledge at the time of trial. 4. Counsel submitted that the material relied upon was not the judgment in ELC No. 133 of 2019 per se, but the Gazette Notice No. 9229 of 29th July 2011. Counsel further submitted that the factual material disclosed therein revealed previously unknown facts that directly affect the foundation of the judgment herein. 5. Counsel contended that at the time of trial, the official searches indicated the Plaintiff as the registered proprietor, thereby constituting prima facie evidence of ownership since no contrary evidence was available to challenge this position. Counsel argued that, despite this, the Defendant had exercised due diligence by adducing evidence that the suit property lay within a road reserve and that licensing fees had been paid to the Kenya National Highways Authority and the County Government of Nairobi, and by seeking a site visit, which was not granted. 6. Counsel submitted that it was only through the proceedings in ELC No. 133 of 2019 that a Court of competent jurisdiction undertook a detailed examination of the Plaintiff's title and, upon consideration of Gazette Notice No. 9229 of 29th July 2011, found that the Plaintiff had no valid title and that the suit property had reverted to the Government. Counsel contended that although the Gazette Notice existed at the time of trial, it was not within the Defendant's knowledge and could not have been discovered through reasonable diligence, particularly given that all official searches continued to reflect the Plaintiff as the registered proprietor. 7. Counsel contended that the subsequent judgment relied upon for review was the Gazette Notice and its legal effect, not the judgment itself. Counsel submitted that the newly discovered material went to the root of the dispute, namely the ownership of the suit property, which formed the basis of the finding of trespass, and is therefore capable of affecting the outcome of the decision. Counsel submitted that the Defendant has met the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 8. Counsel submitted that the Plaintiff's contention that the judgment in ELC No. 133 of 2019 contained an error and was subject to a pending review application does not defeat the present application. Counsel argued that the issue before this Court is not whether the subsequent judgment is correct or erroneous, but whether the material disclosed therein constitutes new and important evidence that was not available at the time of trial. Counsel further submitted that the judgment in ELC No. 133 of 2019 remains a valid and subsisting determination of a Court of competent jurisdiction unless and until it is set aside. 9. Counsel argued that the mere existence of a challenge to the judgment does not negate its legal effect or its relevance to the present application. Counsel contended that the issues raised by the Plaintiff regarding the Gazette Notice relate to the merits of the findings in the subsequent proceedings and do not alter the fact that the Gazette Notice and its implications were not within the Defendant's knowledge at the time of trial. Counsel argued that the Plaintiff's Replying Affidavit does not undermine the fundamental position that new and material evidence had emerged which directly affected the foundation of the judgment herein. 10. Counsel submitted that, although the Defendant had satisfied the decree by paying substantial sums in compliance with a judgment that was valid and enforceable at the time, the Court is empowered to revisit the matter and grant appropriate relief, including restitution, when a judgment is subsequently shown to be based on a materially altered factual basis. Counsel contended that the purpose of review is to ensure that justice is not defeated by the continued enforcement of a decision that no longer reflects the true legal position. 11. Counsel further submitted that the newly discovered evidence demonstrates that the Plaintiff may not have had a valid proprietary interest in the suit property. Counsel argued that to allow the Plaintiff to retain the benefit of the judgment in such circumstances would be unjust and inequitable. Counsel maintained that the Defendant is entitled to the reliefs sought, including review of the judgment and appropriate orders to restore the parties to their respective positions prior to the enforcement of the decree. 12. Counsel maintained that the Defendant has satisfied the threshold for review and urged the Court to allow the application as prayed. 13. As of the time of writing this ruling, the Respondent had not filed his submissions as directed. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits and the Applicant’s submissions, the only issue for the determination is whether the judgment dated 23rd May 2022 should be reviewed. 2. The law governing applications for review is outlined in Section 80 of the Civil Procedure Act and in Order 45 Rule 1 of the Civil Procedure Rules. **Section 80 of the Civil Procedure Rules** provides 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 has been preferred; or*** ***b. 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.”*** 1. **Order 45 Rule 1 of the Civil Procedure Rules, 2010** provides that: “***1. (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. In **Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR,** the Court of Appeal held that: ***“In the High Court, both the Civil Procedure Act in Section 80 and the Civil Procedure Rules in Order 45 Rule 1 confer on the court power to review. Rule 1 of order 45 shows the circumstances in which such review would be considered, ranging from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason, but section 80 gives the High Court greater amplitude for review.”*** 1. Similarly, in **Republic v Public Procurement Administrative Review Board & 2 Others [2018] eKLR,** the Court held that: ***“Section 80 gives the power of review, and Order 45 sets out the rules. These rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review.”*** 1. The principles governing review were comprehensively summarized in **Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR**, as follows: 1. ***A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.*** 2. ***The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.*** 3. ***An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.*** 4. ***An erroneous order/decision cannot be corrected in the guise of exercise of power of review.*** 5. ***A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.*** 6. ***While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.*** 7. ***Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.*** 8. ***A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.*** 9. ***Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.*** 10. ***The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.*** 2. The first issue for determination is whether this application was filed without an unreasonable delay. The impugned judgment was delivered on 23rd May 2022, while the present application was filed on 28th October 2024, approximately two years and five months later. The Defendant explained that the delay was due to its only becoming aware of the judgment in **Luthra & 5 Others v Laly & 11 Others [2024] KEELC 3317 (KLR),** which was delivered on 24th April 2024, and that it acted promptly thereafter. This Court accepts that explanation and finds that the application was not made with an unreasonable delay. 3. Turning to the substance of the application, the Defendant contends that new and important evidence has emerged in the form of the judgment in Luthra & 5 Others v Laly & 11 Others (ELC No. 133 of 2019), where the Court determined that the Plaintiff was not the lawful owner of the suit property and that the property reverted to the Government on 29th July 2011 by virtue of Gazette Notice No. 9229 of that date. The Defendant asserts that the judgment in those proceedings, and more specifically, the Gazette Notice disclosed therein, constitutes new and important evidence underpinning the present application. 4. **In Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR,** the Court held that a decision or order cannot be reviewed based on a subsequent judgment or decision of a Court of equal jurisdiction. Furthermore, subsequent events or developments cannot be taken into account when declaring an initial order or decision vitiated by an apparent error. The Court's jurisdiction on review is limited to what was before it at the time the decree was issued. 5. The Defendant attempted to address this principle by arguing that it does not directly rely on the judgment in ELC No. 133 of 2019, but rather on Gazette Notice No. 9229 of 29th July 2011. A perusal of the Gazette Notice shows that the title revoked is Block 93/1427. The suit property is Title Number Nairobi/Block 93/1429. The two parcels are clearly different. This Court cannot accept the argument that the Gazette Notice constitutes new and important evidence going to the root of the Plaintiff's title to Nairobi/Block 93/1429, when the said Gazette Notice does not, on its face, affect that title at all. 6. In light of the foregoing, this Court is not satisfied that the Defendant has met the threshold of due diligence required to sustain a review application based on newly discovered evidence. It is trite that the mere discovery of new or important matter is insufficient to justify a review. In **Rose Kaiza v Angelo Mpanjuiza [2009] eKLR,** the Court quoted the commentaryby *Mulla* of the Indian Civil Procedure Code, 15th Edition at page 2726**,** regarding the discovery of new and important evidence: ***“Applications on this ground must be treated with great caution and, as required by r 4(2) (b), the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”*** 1. The Gazette Notice was published on 29th July 2011, predating this suit by several years. The Defendant has not presented any material before this Court demonstrating that, despite reasonable efforts, it could not have located and produced the said Gazette Notice during the hearing of this suit. The record shows that the Defendant was already aware of the possibility of a challenge to the Plaintiff's title. In the circumstances, the assertion that the Gazette Notice was beyond the reach of due diligence is difficult to sustain. 2. The upshot of the foregoing is that the application lacks merit and is hereby dismissed with costs to the Plaintiff. **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Kibe holding brief for Ms Mburu for the Defendant Vena – Court Assistant