https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3977

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **ELC NO. E001 OF 2024** **SAMUEL WAINAINA MBURU……………..………………………….....PLAINTIFF** **VERSUS** **SIMON CHEGE ……………………..………………………………1ST DEFENDANT** **DAVID MWANGI** **WAMUGUNDA………………………………………………………2ND DEFENDANT** **JAMES NDUGO……………………………………………………..3RD DEFENDANT** **RULING** 1. This ruling is in respect of a Notice of Motion application dated 19th March, 2026, by the Plaintiff/Applicant seeking the following orders: 2. ***Spent.*** 3. ***The judgment delivered on 25th February, 2026, and any decree consequential thereto be reviewed, varied and/or be set aside on the basis of sufficient causes and discovery of new evidence and verification on issues of facts apparently on the face of the record.*** 4. ***Costs of the application be in the cause.*** 5. The application is grounded on the supporting affidavit of Samuel Wainaina Mburu the Plaintiff/Applicant, who deponed that the judgment was delivered on 12th February, 2026, and that he has discovered new evidence which with the exercise of due diligence could not have been tendered before delivery of the judgment. 6. The Applicant further deponed that as per the sale agreement dated 12th September, 2009, between Monica Wanjiru and the 2nd Defendant who presented himself as the purchaser, a banker’s cheque of Kshs. 1.5 million was paid, but it did not state the person who paid. Further, he was not a signatory to the said agreement, yet he was the one who paid the banker's cheque to the vendor; hence, the manner in which the subject property was purchased was suspicious, as the sale agreement ought to be reduced into writing and signed by all witnesses. 7. It was his disposition that the reason as to why he was left out during signing of the agreement was serious and not explained, therefore amounts to sufficient cause to review the judgment. He further averred that there was documentary evidence that showed individuals known to the Defendants subdividing the property and that the necessary witnesses were not called to shed light on the issues raised. **RESPONDENT’S CASE** 1. The 2nd Defendant, David Mwangi Wamugunda vide his Replying Affidavit sworn on 20th April, 2026, gave a background to the case and averred that the application was an abuse of the court process. 1. He averred that the Plaintiff never raised any objection as to the manner in which the transaction and subdivision were conducted, and stated that the Plaintiff filed this suit which was dismissed with costs. 2. The Respondent stated that the Plaintiff had not satisfied the legal threshold for review and that there was no discovery of a new and important matter not within his knowledge at the time of trial. It was the Respondent’s case that the application was an attempt to re-open the case and invite the court to sit on an appeal over its own decision. 3. Counsel for the Applicant filed submissions and relied on **S**ection 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and submitted that the jurisdiction of review is both corrective and protective in nature designed to ensure the court process does not result in injustice, and cited the case of **Benjoh Amalgamated Ltd V Kenya Commercial Bank [2014] eKLR.** 4. Mr. Mwangi submitted that the Plaintiff has satisfied the requirements for discovery of new evidence which is related to ownership and financial contribution thus affecting the foundation of the judgment, and relied on the cases of **Republic V Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR** and **Wangechi Kimita V Wakibiru Mutahi [1985] KECA 73 (KLR).** 5. Counsel also stated that the application was filed without unreasonable delay, and relied on the case of **Francis Origo V Jacob Kumali Mungala [2005] eKLR,** and urged the court to allow the application as prayed. **RESPONDENT’S SUBMISSION** 1. Counsel for the 1st and 2nd Defendant filed her submissions and identified the following issues for determination: 2. ***Whether the Applicant is entitled to the orders sought in the Notice of Motion application dated 19th March, 2026.*** 3. ***Who should bear the costs of the suit.*** 4. On the first issue, counsel submitted in the negative and relied on **Order 45 Rule 1 of the Civil Procedure Rule**s and the case of **Francis Origo & Another V Jacob Kumali Mungala [2005] eKLR.** Counsel submitted that the Applicant has raised matters that were within his knowledge at the time of filing the suit, hence cannot be considered as new evidence to warrant a review. 5. Ms. Mukira submitted that the court having fully heard and determined the dispute on merits, cannot be invited to reopen the case on account of the Plaintiff’s failure to properly present his case as there was no error apparent on the face of the record. 6. Counsel relied on the case of **Mabrouk V Muthama & Another [2017] eKLR,** and submitted that there was no sufficient reason or compelling circumstances that justify a review of the judgment. Counsel stated that the application attempted to re-open the case and re-litigate matters that have already been conclusively determined on merit, and relied on the cases of **Telkom Kenya Ltd V John Ochanda [2014] eKLR and Mwangi S. Kimenyi V Attorney General & Another [2014] eKLR,** and urged the court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. The issue for determination is whether the Applicant has met the threshold for review/setting aside of the Judgment dated 25th February 2026. 2. The jurisdiction of the court for review of orders is provided for under **Order 45 Rule 1 (1)** of the **Civil Procedure Rules** which provides as follows: **“1. *Application for review of decree or order*** ***(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. The reasons set out in the application for review or setting aside the judgment delivered on 25th February 2016 do not fall within the purview of the principles provided under Order 45 Rule 1 (1) of the Civil Procedure Rules. They fly in the face of known reasons for review of an order of the court or a judgment. 2. The claim that the Applicant paid the Bankers cheque to the vendor yet he was not a signatory to the said agreement hence the whole transaction was suspect, should not be treated as a discovery of new evidence or an error apparent on the face of the record. 3. In the case of **Evan Bwire V Andrew Aginda Civil Appeal No. 147 of 2006** cited with approval the case of **Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR** the Court of Appeal held as follows: ***“An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.”*** 1. The Applicant has not met the threshold for review as he has not demonstrated the existence of new evidence which he could not get even after exercising due diligence. If the Applicant was aggrieved by the judgment, he could have filed an appeal and not an application for review on the grounds that he has stated in the application. 1. The upshot is that the Application dated 19th March, 2026, is hereby dismissed with costs to the Respondents. **DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF JULY 2026.** **M. A. ODENY** **JUDGE**