Mackenzie & 4 others v Mackenzie & another (Civil Appeal 60 of 2020) [2026] KECA 1131 (KLR) (12 June 2026) (Judgment)

Mackenzie & 4 others v Mackenzie & another (Civil Appeal 60 of 2020) [2026] KECA 1131 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1131 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 60 of 2020 W Karanja, K M'Inoti & F Tuiyott, JJA June 12, 2026 Between Rose Ndanu Mackenzie 1st Appellant Francisca Ndunge Mackenzie 2nd Appellant Virginia Nthenya Mackenzie 3rd Appellant Kevin Musembi Mackenzie 4th Appellant Lauren Nduku Mackenzie 5th Appellant and Barry Manza Mackenzie 1st Respondent Land Registrar, Makueni County 2nd Respondent (Appeal from the ruling and order of the Environment & Land Court at Makueni (Mbogo, J.) dated 20th May 2019 in ELCC No. 24 of 2017 Environment and Land Case Civil Suit 24 of 2017 ) Judgment 1.This appeal arises from the ruling and order of the Environment and Land Court (ELC) at Makueni (Mbogo, J) dated 20th May 2019. By that ruling, the ELC dismissed an application by the five appellants in this appeal in which they sought an order for review and setting aside of an earlier judgment of the court dated 20th July 2018, dismissing their case against the 1st respondent, Barry Mwanza Mackenzie. 2.The brief background to the appeal is as follows. At all material times the 1st respondent was the registered owner of the property known as Makueni/Kako/392 (the suit property). The five appellants and one George Musau Mackenzie, who is not a party to this appeal, filed a suit in the ELC on 24th February 2017 against the 1st respondent. The plaint was subsequently amended on 12th May 2017 to, among others, include the 2nd respondent, the Land Registrar, Makueni County, as a party. The appellants pleaded that the 1st respondent held sixteen (16) acres of the suit property in trust for them, the same having belonged to their late father, Mackenzie Musau (the deceased). By way of reliefs, they prayed for an injunction to restrain the 1st respondent from trespassing into or interfering with the said sixteen acres of the suit property; an order of eviction therefrom; a declaration that the registration of the 1st respondent as owner of the suit property was null and void; an order for cancellation of his registration; registration of the suit property jointly and in equal shares in the names of the appellants and the 1st respondent; issuance of a new title to the suit property; costs and interest. 3.In his defence dated 9th February 2018, the 1st respondent denied the appellants’ averments. He pleaded that the deceased owned another property known as Makueni/Unoa/244 which he subdivided and registered in the names of each of the appellants. He further pleaded that the deceased purchased the suit property with a loan from the National Bank of Kenya but defaulted in servicing the loan. To avoid auction of the suit property, the 1st respondent repaid the loan and the deceased duly transferred and registered the suit property in the 1st respondent’s name. He urged the court to dismiss the appellants’ suit with costs. 4.The suit was heard by Mbogo, J with George Musau Mackenzie testifying on behalf of the appellants, while the 1st respondent testified on his own behalf. The learned judge found that there was no evidence that the appellants had ever served the plaint or amended plaint upon the 2nd respondent and therefore dismissed the case against that respondent. 5.The learned Judge framed a single issue for determination, namely whether the 1st respondent held the suit property in trust for the appellants. He held as follows in the pertinent part of the judgment dated 20th July 2018:“Firstly, I agree with counsel for the 1st defendant that the plaintiffs did not adduce any evidence whatsoever to show that the 1st defendant acquired unprocedurally, irregularly or unlawfully the two aforementioned parcels of land. In any case parties are bound by their pleadings and I see no averment in that’s regard in the amended plaint. Regarding the issue of trust the 1st plaintiff in his evidence told the court that they were not present when their father and the 1st defendant allegedly made an agreement that the latter was to hold parcels— number-—Makueni/Kako/67 and Makueni/Kako/392 in trust for them. Even though the plaintiffs deny that their late father never obtained a loan facility with the National Bank of Kenya Ltd, Dex No. 2 which is a letter dated 22/10/82 and produced by the 1st defendant shows that one Mackenzie Musau's loan facility was taken over by his son, Barry Mackenzie who is the 1st defendant herein. There is nothing to show that the plaintiffs ever participated in the repayment of the said loan facility. From the evidence on record and the exhibits produced, there is nothing that can make this court infer a trust from the alleged arrangement between the plaintiffs' late father and the 1st defendant.” 6.Accordingly, the ELC dismissed the appellants’ suit with costs to the 1st respondent. 7.On 9th August 2018 the appellants filed a notice of change of advocates and on the same date applied to the ELC, in the main, to review and set aside the judgment of 20th July 2018 and to re-open the case so as to allow the appellants tender new evidence and cross-examine the 1st respondent on the same. 8.The application was based on the grounds that new evidence had come to light and showed that the deceased did not obtain a loan from National Bank of Kenya and that the suit property was never auctioned. The appellants also contended that the 1st respondent did not produce evidence of newspaper advertisement for auction of the suit property and that the signatures of the deceased did not tally with other signatures on the transfer forms. 9.The 1st respondent opposed the application for review vide a replying affidavit sworn on 18th October 2018, in which he averred, among others, that the appellants had not satisfied the grounds for review; that the attempt to introduce new evidence after judgment was a disingenuous attempt to patch up the appellants’ case; that the purported new evidence was available all along and could have been produced by exercise of due diligence; that the application was a disguised appeal against the judgment of the ELC; that there was no error apparent on the face of the judgment to justify review; and that the ELC was functus officio in the matter. 10.The 1st respondent also took issue with the appellant’s application and notice of change of advocates on the basis that they were in violation of order 9 rule 9 and order 45 rule 1 of the Civil Procedure Rules. 11.Mbogo, J heard the application and by a ruling dated 20th May, 2019, the subject of this appeal, found that the notice of change of advocates was in violation of order 9 rule 9 in that there was no consent between the former and the new advocates and leave of the court was neither sought nor obtained. He found the application founded on such notice of change of advocates to be defective. However, the learned judge did not stop there. He considered the application for review on its merits and dismissed the same with costs to the 1st respondent. The learned Judge delivered himself as follows on the prayer for review:“On whether or not the application for review should be allowed, I am in agreement with the counsel for the 1st defendant/respondent that the evidence that the plaintiffs/applicants intend to tender was all along within their reach and could have been easily obtained before the plaintiffs/applicants prosecuted their case. I further agree with the counsel that even if the court were to allow the application, the same would not be in consonance which the pleadings that the plaintiffs/applicants have filed. It cannot be said that the plaintiffs/applicants have placed before this court sufficient cause so as to allow the application. Indeed I agree with the 1st defendant/respondent’s counsel that to allow the (application) would be tantamount to the court sitting in appeal over its own decision.” 12.The appellants were aggrieved and lodged this appeal, based on 11 grounds of appeal, which they reduced to 3 grounds in their written submissions dated 15th October 2020. Those grounds are that the ELC erred by:i.Holding that the appellants’ advocates were irregularly on record;ii.Finding that the appellants had not satisfied the threshold for review; andiii.Exercising its discretion wrongfully. 13.The appellant’s learned counsel, Mr. Waiyaki, holding brief for Mr. Mumbi, submitted that although an appellate court is slow to interfere with the exercise of discretion by the trial court as explained in Mbogo v Shah [1968] EA 93 and Energy Regulatory Commission v SGS Kenya Ltd & 2 Others [2018] eKLR, in the present case the ELC exercised its discretion wrongfully so as to justify interference by this court. 14.Counsel submitted that the ELC failed to consider the appellants’ notice of change of advocates against the provisions of order 9 rule 9 of the Civil Procedure Rules, which constituted an error apparent on the face of the record. 15.Counsel further submitted that the application for review was primarily made under section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules and that it was based on discovery of new and important evidence and errors apparent on the face of the record. The new evidence, it was contended, was the green card of the suit property which raised questions whether the suit property had been transferred to the 1st respondent as held by the ELC. It was also submitted that the new evidence showed, among others, that the deceased did not obtain a loan from the bank; that the suit property was never auctioned and that it was registered in the name of a person other than the deceased. 16.The appellants submitted that the ELC misdirected itself and wrongfully exercised its discretion by holding that the appellants had not presented sufficient grounds for review. The ELC was also faulted for failure to rely on the overriding principle in sections 1A and 2B of the Civil Procedure Act which is intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes and obligates the court to act justly in every situation. In the appellant’s view, that was further evidence of wrongful exercise of discretion. 17.The appellants further submitted that the failure to adduce the new evidence was occasioned by lack of knowledge of its existence and that the evidence only came to their attention after the judgment of the ELC. For the foregoing reasons they urged the court to allow the appeal with costs. 18.The 1st respondent opposed the appeal vide written submissions dated 15th March 2021. Mr. Mwinzi, learned counsel, submitted the ELC properly found that the appellants had not complied with order 9 rule 9 in the manner in which their new advocates came on record without consent or leave, and that there was no room for applying the overriding principle. 19.On the application for review, counsel submitted that the ELC properly dismissed the application for review because it did not satisfy the conditions identified by this court in Muyodi v Industrial & Commercial Development Corporation [2006] 1 EA 243 and Kireru Kapoya & 2 Others v Simon Kapoya & Another [2019] eKLR. 20.It was submitted that the alleged new evidence in the form of green cards was not relevant to the appellants’ case as pleaded, because, the appellants pleaded that the 1st respondent was registered as owner of the suit property in trust for them, but in the alleged new evidence, they claimed that the 1st respondent was not the registered owner of the suit property. It was contended that parties are bound by their pleadings and that the court will not allow new evidence contradicting the pleadings or altering the nature of the case as pleaded. 21.Counsel further submitted that the appellants had failed to show that the purported new evidence could not have been obtained by exercise of due diligence. It was contended that copies of the green card and transfers were available at the 2nd respondent’s offices at the time of the trial and the appellants had not shown any efforts that they made to obtain those documents during the trial. 22.Turning to the mistake or error apparent on the face of the record alleged by the appellants, the 1st respondent relied on the decision of this court in Stephen Wanyoike Kinuthia v Kariuki Marega & Another [2018] KECA 623 (KLR) and submitted that a mistake or error apparent on the face of the record is an obvious and patent mistake readily perceivable without a long and drawn-out process of reasoning. It was contended that what the appellants alleged to be mistakes or errors apparent on the face of the record were substantive issues fit for an appeal rather than an application for review. For the foregoing reasons, the 1st respondent urged the court to dismiss the appeal with costs. 23.The 2nd respondent neither filed written submissions as directed, nor appeared at the hearing of the appeal. 24.We have carefully considered the ruling of the ELC, the grounds of appeal, the submissions by the appellants and the 1st respondent and the authorities they relied upon. The issues raised by the appeal are basically two, namely, whether the ELC erred in its interpretation and application of order 9 rule 9 of the Civil Procedure Rules and whether it erred further by holding that the appellants had not established any basis for review of the judgment dated 20th July 2019. 25.Order 9 of the Civil Procedure Rules provides for recognised agents and advocates. Rule 9 of that order provides as follows:“ 9.When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.upon an application with notice to all the parties; orb.upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 26.The order leaves no doubt that any change of advocates after judgment as happened in this case, must be preceded either by leave granted by the court on application and notice to all the parties, or a consent order between the incoming and the outgoing advocates. We think that the overriding concern of order 9 rule 9 is to avoid post-judgment disputes on fees between the former and the new advocates. 27.In John Gitonga Gachuhi & 4 Others v. Commissioner of Lands & 5 Others [2017] KEHC 8553 (KLR), an objection was taken before the High Court that counsel for the applicant was not properly on record, having not complied with order 9 rule 9. The court emphasised the constitutional right to legal representation and the right to be heard and instead of striking out the application by an advocate who was not properly on record, opted to regularise the position by deeming the notice of change of advocates to have been properly filed. 28.In this appeal, although the ELC found that the appellant’s counsel was irregularly on record, which we agree with, the court did not strike out the application that he had filed for review. Instead, the ELC entertained the application and determined it on its merit. Accordingly, nothing turns on this ground of appeal because the application was ultimately heard and determined on merit, the irregularity of the notice of change of advocates notwithstanding. 29.As regards the dismissal of the application for review, an applicant for an order of review is required by both section 80 of the Civil Procedure Act and rule 45 of the Civil Procedure Rules to satisfy the court that:i.he has discovered new and important matter or evidence; andii.the matter or evidence was not within his knowledge or could not be produced at the hearing after exercise of due diligence; oriii.there is a mistake or error on the face of the record; oriv.on account of any other sufficient reason. 30.It is trite that in an application for review of a judgment or ruling based on discovery of new and important matter or evidence, the new evidence must be directly relevant to the issues determined by the court. It cannot be peripheral or irrelevant evidence or evidence that contradicts the case pleaded by the party seeking review. 31.The appellants’ case as pleaded in the amended plaint dated 12th May 2017 was that the 1st respondent was the duly registered owner of the suit property, but in trust for them. It was never their case that the 1st respondent was not the registered owner of the suit property, or that he was registered illegally or fraudulently. The following paragraphs of their plaint make their case as pleaded crystal clear:“6.The 1st defendant herein was at all the material times the registered owner of land parcels Makueni/Kako/67 measuring 16 acres in size and Makueni/Kako/392 measuring 20 acres in size.7.The lands were initially owned by Mackenzie Musau who died in the year 1989. Mackenzie Musau was the plaintiffs' and the 1st defendant's father.8.Before the initial registered owner Mackenzie Musau passed on, he transferred the two portions of land to one of his sons Barry Manza Mackenzie to hold it for himself and to hold on trust for his other six siblings who are the plaintiffs' herein.9.The 1st defendant has wrongly entered on to the aforesaid 16 acres and took (sic) possession thereof and has thereby trespassed on the said 16 acres which is to be hived from land parcel No. Makueni/Kako/392 and has been committing waste thereon and is still tressing thereby (sic).” 32.From the above pleadings, the issue that the ELC was called upon to decide was simply whether the 1st respondent was registered as owner of the suit property in trust for the appellants. The alleged new evidence on the basis of which the appellants sought review of the ELC judgment included a green card alleged to show that the suit property was not transferred to the 1st respondent; documents intended to show that the suit property was registered in the name of a different person from the deceased; and signatures on the transfer forms that were said not to tally. 33.The effect of the new evidence was to show that the 1st respondent was not registered or lawfully registered as owner of the suit property, contrary to the appellant’s express pleadings, which they had not applied to amend. The appellants cannot plead that the 1st respondent is the registered owner of the suit property which he holds in trust for them, then be allowed to adduce evidence proving that the 1st respondent is not the registered owner. We are satisfied that the ELC did not err in rejecting the purported new evidence. 34.In addition, the appellants did not satisfy the court that they could not have obtained the purported new evidence for use in the ELC with exercise of due diligence. As correctly pointed out by the 1st respondent, the nature of the evidence, in particular the green card and the transfer forms, is the kind of evidence that is ordinarily in the custody of the 2nd respondent. That evidence, which proved to be so easily available after judgment, could equally have been easily available at trial if only the appellants had exercised a little due diligence. 35.The learned authors of Mulla’s Commentary on the Indian Civil Procedure Code, 15th Ed state as follows at page 2726 regarding the interpretation of a rule of the Indian Civil Procedure Code that is in pari materia with order 45:“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.” (Emphasis added). 36.Regarding mistake or error on the face of the record, a mistake or error on the face of the record does not mean just any error. The alleged error or omission must be self-evident so as not to require an elaborate argument or magnifying glass to see it. In National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR), this court held as follows regarding review:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court.The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” (Emphasis added). 37.Similarly, in Nyamogo & Nyamogo v Kogo [2001] 1 EA 173 this court held as follows:“There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for appeal.” 38.Having carefully considered the record and the ruling of the ELC, we do not perceive any mistake or error apparent on the face of the record that would have justified review of the judgment of the ELC. The contention by the appellants that the ELC erred by holding that the suit property was transferred to the 1st respondent or that it based its judgment on insufficient evidence regarding the auction were issues only fit and proper for appeal rather than an application for review. The review jurisdiction of the court is distinct and different from its appellate jurisdiction. The extent and limit of the review jurisdiction was succinctly explained by the East African Court of Justice in Independent Medical Legal Unit v. Attorney General of the Republic of Kenya, Application No. 2 of 2012 as follows:“The review jurisdiction of the court cannot be exercised on the ground that the decision of the court was erroneous on merit. That would be in the province of a Court of Appeal. A review cannot be brought merely for fresh hearing or argument or correction of an erroneous view taken earlier. A review proceeding cannot be equated with the original hearing of the case. The purpose of the review jurisdiction is not to provide a back door by which unsuccessful litigants can seek to re-argue their cases.” 39.Having carefully considered this appeal, we are satisfied that the same is totally bereft of merit and is hereby dismissed in its entirety with costs to the 1st respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026.W. KARANJA………………………………JUDGE OF APPEALK. M’INOTI………………………………JUDGE OF APPEALF. TUIYOTT……………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed. DEPUTY REGISTRAR