https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3621

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCC SUIT NO. E019 of 2022** **JOHN MWANGI MACHARIA…………………………...………PLAINTIFF** **VERSUS** **MILCAH WANJA KIBAGA ………….………………………DEFENDANT** **AND** **PETERSON NGINGA MACHARIA………….……..INTERESTED PARTY** **RULING** 1. The Interested Party herein filed an application under Notice of Motion dated October 8, 2025, seeking the following orders: 2. **Spent** 3. **Pending the hearing and determination of this application, this Honorable Court be pleased to issue a temporary injunction restraining the Respondent, whether by himself, his servants, agents, or any third parties acting under his instructions, from selling, transferring, charging, leasing, subdividing, or in any way dealing with the parcel of land known as Othaya/Ihuririo/232 until further orders of the Court.** 4. **The interim orders herein be registered against the title to Othaya/Ihuririo/232 forthwith, and the Land Registrar be directed to restrict any dealings thereon pending further directions of the Court.** 5. **This Honorable Court be pleased to review and/or set aside the judgment and orders issued in ELCC/E019/2022 on account of material nondisclosure and misrepresentation by the Respondent.** 6. **That a permanent injunction be issued restraining the Respondent, his servants, agents, or any third parties claiming under him from alienating, transferring, charging, leasing, subdividing, or in any way interfering with the parcel of land known as Othaya/Ihuririo/232, pending the lawful conclusion of succession proceedings in HC P&A Cause No. 257 of 1999, In the Estate of Macharia s/o Karundo, alias Macharia Karundo.** 7. **The Land Registrar, Nyeri, be directed to cancel the Respondent's registration as the sole proprietor of Othaya/Ihuririo/232 and to restore the title to the deceased's name, pending lawful distribution through succession.** 8. **The costs of this application will be provided for.** 9. The Application is supported by the affidavit of the Interested Party, who deposed that he is a brother of the Respondent/Plaintiff, and that both are sons of the late Macharia s/o Karundo, alias Macharia Karundo, who died on or about the year 1966. 10. That their deceased father was the registered proprietor of the parcel of land known as Othaya/Ihuririo/232, measuring approximately 12.3 acres. 11. The Interested Party/Applicant’s family, together with the families of other beneficiaries, has been in occupation of the suit property for decades and continues to reside there and carry out developments. 12. He also revealed that the suit property is subject to succession proceedings in **HC P&A Cause No. 257 of 1999, in the Estate of Macharia s/o Karundo, alias Macharia Karundo**, which proceedings are still pending the distribution of the estate. 13. In addition, a caution was lodged against the property by their stepbrother, Philip Nginga Macharia, restricting any dealings with the title until the estate is lawfully administered. 14. At some point in August 2025, the Applicant learned from reliable third parties that the Plaintiff herein was seeking to sell a portion of the suit property. Alarmed by this information, he conducted an official search by applying for a copy of the green card. To his shock, he discovered that the Respondent had caused the property to be registered in his sole name as absolute proprietor on July 17, 2025. 15. That upon further inquiry and through his advocates of record, he established that the Respondent obtained title to the property pursuant to the judgment in this suit delivered on March 20, 2024. 16. The Applicant believes that the orders and judgment were obtained by misleading the Honor Court, as the Respondent deliberately failed to disclose material facts, including the existence of the beneficiaries in the succession cause who are also in occupancy of the suit property and the caution lodged against the suit property. 17. The Interested Party accuses the Plaintiff of acting in bad faith, solely to defeat the due process of succession and unlawfully disinherit other beneficiaries by registering himself as the absolute proprietor. 18. He argues that unless the orders and judgment are set aside, the Respondent will transfer the property to third parties, thereby exposing the occupants to eviction, creating multiple disputes, and causing irreparable loss to the estate and the beneficiaries. 19. The Applicant added that the Court has jurisdiction to review and/or set aside its orders when sufficient cause is shown, and believes this is a proper case for intervention to prevent abuse of the court process and a miscarriage of justice. **The Plaintiff/Respondent’s replying affidavit** 1. The Plaintiff herein swore an affidavit in response to the instant application. He denied that the land at issue in this case belonged to the so-called Macharia Karundo, deposing that he obtained the suit land from the Defendant herein, who was registered as the proprietor of the suit property on November 23, 1987. 2. The Plaintiff/Respondent also denied that the suit land is the subject of Succession Cause No. 257 of 1999 in respect of the estate of Macharia Karundo, adding that the Applicant herein does not live on the suit land, that he moved to Kiawara Market in Kieni West of Nyeri County over twenty (20) years ago, where he is fully settled with his entire family, and that he secretly sold the land that is the subject of the succession cause. 3. The Applicant was also accused of failing to serve the Defendant with this Application, and the Plaintiff states that this case will be properly heard and determined without the Defendant having been served with this Application. 4. Further, the Plaintiff/Respondent denied that this Honorable Court has jurisdiction to review or set aside its Judgment delivered on 20-03-2024, stating that his case was one of adverse possession before this Honorable Court, having been on this land for 35 years up to the year 2022. 5. Thus, the Plaintiff/Respondent contends that this Application dated 08-10-2025 is intended to abuse the process of this Honorable Court and prays that it be dismissed in its entirety, with costs to himself. 6. He also swore a further affidavit on the 2nd of February 2026, opposing the Interested Party’s counsel’s request for a site visit and stating that he would only be seeking to lie to the Court. 7. That all the houses on the suit land belong to him and his sons, and that whoever might be sent there will raise contradictory issues to please the Applicant, resulting in his land being illegally and unconstitutionally given to the Applicant through corruption, and that the suit land should not be visited. **The Applicant’s written submissions** 1. Counsel for the Applicant submitted that during the hearing of this suit, the Respondent failed to disclose that the property was initially registered in the name of his father, Macharia S/O Karundo, who died in 1966 and whose estate remains the subject of **Nyeri High Court Probate and Administration Cause No. 257 of 1999**. 2. The Applicant further submits that the suit property forms part of the deceased's undistributed estate and that the succession proceedings have not been concluded, nor has the estate been lawfully distributed among the beneficiaries. The Applicant adds that the Applicant, together with his family and other beneficiaries of the estate of Macharia S/O Karundo, have remained in possession and occupation of the suit property. 3. Counsel relied on the law governing review of judgments as given under Order 45 Rule 1 of the Civil Procedure Rules, submitting that in the present application, the Applicant relies on the ground of sufficient reason, arising from material non-disclosure and misrepresentation of facts by the Respondent during the hearing of the suit. 4. It is submitted that the Respondent failed to disclose material facts central to the determination of the dispute, including that the suit property formed part of the estate of a deceased person and that any purported dealings with the property in the absence of a grant of representation would be unlawful and incapable of conferring a valid title. It is their view that had these facts been disclosed to the Court during the hearing of the suit, they would have fundamentally altered the context in which the Respondent's claim for adverse possession was considered and would have cast serious doubt on the validity of the title upon which that claim was premised. 5. Further, the Applicant argues that the caution on the suit title demonstrates that ownership and occupation of the property have long been contested and subject to competing claims, thereby undermining the assertion that the Respondent enjoyed exclusive, peaceful, and uninterrupted possession, which is a fundamental element of a claim for adverse possession. 6. Regarding whether the application has been filed without unreasonable delay, the Applicant has averred that he became aware in August 2025 that the Respondent had been registered as the proprietor of the suit property, and that the present application was filed shortly thereafter on October 8, 2025, a period of approximately one month. 7. Counsel concluded that the Applicant has established sufficient grounds within the meaning of Order 45 Rule 1 to warrant the intervention of this Honor Court and prayed that their application be allowed as prayed. **The Plaintiff/Respondent’s written submissions** 1. The Plaintiff/Respondent submits that, given the circumstances surrounding the suit land, particularly the fact that the land was registered in the name of the defendant herein, Milkah Wanja Kibaga, on 23 November 1987, this Court should dismiss this Application dated 8-10-2025 with costs to himself. 2. Regarding the prayers sought in the Application, the Plaintiff submits that granting them would be unconstitutional. His land was stolen and registered in the name of Milkah Wanja Kibaga on 23 November 1987. Therefore, the orders are illegal, unlawful, and unconstitutional because, on 23 November 1987, the land was illegally transferred from Macharia Karundo, and the succession is null and void, having been filed about 12 years after the land ceased to belong to Macharia Karundo. 3. It is his submission that the Green Card attached for Land Parcel Number Othaya/Ihuririo/232 shows that he acquired this land through adverse possession in this case and that it is registered in his name under Article 64(a) of the Constitution of Kenya. 4. Further, since this is not a criminal matter, the OCS of a police station should not be involved in the suit. 5. The Respondent concluded that the Application before the Court is without merit and requested that the Court dismiss it with costs to him, submitting that the judgment delivered herein should not be altered. 6. The Plaintiff/Respondent also filed a document titled ‘reply to submissions’, essentially reiterating his submissions herein that the suit land was not part of the estate of Macharia Karundo (Deceased) and that there is a need to warrant a review of the case in which judgment was passed on 20th March 2024. **Analysis and Determination** 1. The Applicant herein has made several prayers in his Notice of Motion dated October 8, 2025. Based on the materials and submissions, I frame the following issues for determination by this Court. Should this Court review and/or set aside the judgment and orders issued in ELCC/E019/2022 on account of material nondisclosure and misrepresentation by the Plaintiff/Respondent? Should the Court issue an injunction restraining the Plaintiff/Respondent from selling, transferring, charging, leasing, subdividing, or in any way dealing with the parcel of land known as Othaya/Ihuririo/232? Should the Court order the Land Registrar to restrict any dealings on the suit land and to cancel the registration of the Plaintiff/Respondent herein as the sole proprietor of Othaya/Ihuririo/232? Costs. **A)Should this Court review and/or set aside the judgment and orders issued in ELCC/E019/2022, on account of material non -disclosure and misrepresentation by the Plaintiff/ Respondent**? 1. The instant application seeks to review the judgment of this Court delivered on 20th March 2024, which granted the Plaintiff herein rights of adverse possession over Land Parcel Number Othaya/Ihuririo/232, noting that he had been seeking to have the land registered in his name for the distribution of the estate of their deceased father. The Plaintiff was registered as the absolute proprietor of the suit land. 2. The statutory provisions governing the review of orders and decrees are Section 80 of the Civil Procedure Act, Cap 21, and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act 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 by a decree or order from which its term on 1st October 1976.*** ***(b)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 Rules 1 of the Civil Procedure Rules (2010) 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; 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. Naikuni J, in the case of **Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2025] KEELC 4621 (KLR),** summarized the requirements as set out by the Court of Appeal in the case of **Vallabhdas Karsandas Raniga – Versus - Mansukhlal Jivraj and Others (1965) 1 EA 700 (CAN)** as follows: ***“a. There should be a person who considers himself aggrieved by a Decree or order;*** ***b. The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;*** ***c. A decree or order from which no appeal is allowed by this Act;*** ***d. There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or*** ***e. 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.*** ***f. The review is by the Court which passed the decree or made the order without unreasonable delay.”*** 1. In the present suit, the Applicant herein seeks orders of review because he states that the Plaintiff herein is guilty of material non-disclosure that the suit land is subject to succession proceedings in **HC P&A Cause No. 257 of 1999, in the Estate of Macharia s/o Karundo alias Macharia Karundo**, which proceedings are still pending the distribution of the estate. 2. The Applicant has failed to attach copies of the pleadings and proceedings in the said succession cause, indicating that the suit land herein is the subject of those proceedings. However, annexed to the Originating Summons by the Plaintiff is a list of documents, of which document no. (e) is a Summons for Confirmation of Grant dated 11th April 2002, indicating that L.R Othaya Ihuririo/232, the suit parcel, is indeed the subject of **Succession Cause 257 of 1999**. Thus, this was not a matter unknown to this Court at the time of judgment, nor did the Plaintiff fail to disclose it to the Court, as the Applicant suggests. 3. Further, I note that the Applicant herein was not properly joined to this suit before the filing of the instant application and is not a recognized party to this suit, as there are no orders allowing his joinder on record. 4. Mativo J (as he then was) observed as follows regarding orders of review of a judgment in the case of **Republic v Medical Practitioners & Dentists Board & Another & another; MIO1 on behalf of MIO2 (a Minor) & another (Interested Party); Kingángá (Ex parte) (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR)**: ***“A review of a judgment is a serious step and it can only be resorted where a glaring omission or patent mistake or like grave error has crept in the judgment or order by judicial fallibility but not where the judge has misapplied, misinterpreted or misconstrued the law or facts. The power of review can be exercised for correction of a mistake but not to substitute a view. Put differently, the grounds cited are attacks on the judgment and good grounds of appeal. They cannot and do not qualify to be grounds for review. It is a clear invitation to this court to exercise appellate jurisdiction on its own judgment.”*** 1. In my opinion, the applicant ought to have initially sought joinder; however, he did not do so. An examination of the record reveals that there is no aspect to review, as the court explicitly stated that the land was to be registered in the respondent's name and held in trust for himself and his siblings, pending distribution in the scheduled succession case. 2. In the subsequent application for removal of a caution dated 23rd May 2024, the court was clear that the land was to be registered in favor of the respondent and thereafter distributed in accordance with the distribution matrix in the pending succession, not that the whole land be registered in the respondent's sole proprietorship. 3. The decree extracted on May 17, 2024, is erroneously extracted and bestows the entire parcel on the respondent, contrary to the judge's holding. It is the decree that was wrongly extracted; therefore, there is nothing to review but either to have the decree corrected or to have the applicant apply for joinder and have the decree amended to reflect the court's judgment. 4. I need not discuss the other prayers sought. 5. Consequently, the Application dated 8th of October 2025 was dismissed with no order as to costs. **Dated, signed, and delivered electronically in Nyeri on this 3rd day of June, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Ms. Wachira H/B for Mr. Nderitu for the Interested Party** **Plaintiff (in person)** **In the absence of:** **Defendant (in person)** **Mr. Munga for the 3rd and 4th Defendants** **Kendi: Court Assistant**