Njoroge & 2 others v Nduati & another (Environment and Land Case 7 of 2020) [2026] KEELC 3622 (KLR) (4 June 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC CASE NO. 7 OF 2020** **SAMUEL KARIUKI NJOROGE…………**1ST **APPLICANT/DEFENDANT** **SIMON MURIITHI NDUIRE…………...2ND APPLICANT/DEFENDANT** **MARTIN NDUATI NJOROGE ……………………………….DEFENDANT** **-VERSUS-** **CHARITY GATHIGIA NDUATI………….1st RESPONDENT/PLAINTIFF** **THE LAND REGISTRAR, NYERI………………………2nd RESPONDENT** **RULING** 1. The Applicants herein filed an application under a Notice of Motion dated April 1, 2025, seeking the following orders: 2. **Spent.** 3. **This Honorable Court be pleased to grant leave to the firm of Gori, Ombongi & Company Advocates to come on record for the applicants/defendants after entry of judgment.** 4. **This Honorable Court be pleased to grant an order staying execution of the judgment delivered by the Hon. Mr. Justice James Olola on January 30, 2025, and the consequential orders and/or the decree thereof, pending the hearing and determination of this application.** 5. **This Honorable Court be pleased to set aside the ex parte judgment delivered by the Honorable Mr. Justice James Olola on January 30, 2025, and the consequential orders and/or the decree therefrom.** 6. **The Honorable Court be pleased to allow the applicants/defendants to defend the substantive suit on the merits by adducing their evidence in chief, which is already on record.** 7. **Costs be provided for.** 8. The application is supported by the affidavit of the 1st Applicant, who deposed that he is the 3rd Defendant in this suit. Judgment in this suit was entered on January 30, 2023, and a resulting decree was issued in favor of the Plaintiffs herein. 9. However, the Applicants did not testify before the judgment was delivered during the trial process; they expressed that they were condemned unheard. 10. It is the 1st Applicant’s deposition that it is in the interest of justice to set aside the judgment and decree thereto to allow them a chance to be heard, now that they have engaged a new lawyer. **The 1st Respondent’s response** 1. David Warutere Iregi, Advocate representing the 1st Respondent/Plaintiff, swore an affidavit in response to the instant application on September 11, 2025. He deposed that the present Application is factually misleading to this Honor Court and amounts to an abuse of the court process, as the Applicants fully participated in the suit, were represented by an advocate of their choice, filed a joint statement of Defense, cross-examined the Plaintiff, and filed comprehensive submissions. 2. That having been represented by an advocate of their choice, the Applicants are bound by their advocate's actions, who, in any case, ably represented them throughout the trial, as reflected in the proceedings herein, and even sought adjournments to adduce additional evidence. 3. That, in any event, the Applicants have not disclosed, as stated, which evidence they sought to adduce, other than the one they indicated in their list of documents dated 3rd May, 2021. 4. Further, Counsel for the Plaintiff contended that the firm of Gori, Ombongi & Co. Advocates is not properly on record to seek substantive prayers for a stay of execution of the judgment and to set aside the purported ex parte judgment, as the firm ought to have sought leave to come on record as required by law under Order (9) rule (9) of the Civil Procedure Rules. 5. The 1st Respondent’s advocate also accused the Applicants of attempting to prefer an Appeal disguised as a review Application. 6. He added that the prayer for a stay of execution is overtaken by events because the suit property has already changed ownership in compliance with this court's decree, and prays that the application be dismissed with costs as it is devoid of merit. 7. Counsel swore a supplementary affidavit in further response to the instant application on November 13, 2025. He contends that the Applicants filed a Notice of Appeal against the judgment and decree of this court dated February 14, 2025. Despite filing the said Notice of Appeal, the Applicants have also filed this Application for review and/or to set aside the same judgment of this court. 8. It is Counsel’s view that this demonstrates that the Applicants are pursuing an Appeal before the Court of Appeal while simultaneously seeking in this Court to set aside the same judgment, which amounts to an abuse of the court’s processes, and that this Court should dismiss the present Application **The Applicants’ written submissions** 1. Counsel for the Applicants submitted that the record shows that the 3rd Defendant never filed a statement of defense or a witness statement, and that the 1st and 2nd Defendants likewise neither testified nor adduced evidence. Paragraphs 29 and 17 of the judgment confirm that the court considered only the Plaintiff’s evidence and entered judgment in her favor. 2. According to the Applicants, their failure to present evidence was due to lapses by their former counsel. They should not be condemned for the counsel’s mistake. 3. Counsel relied on Order 45 Rule 1 of the Civil Procedure Rules regarding review and on the authority in the case of **Shanzu Investments Ltd v Commissioner for Lands [1993] eKLR**. 4. They contend that the trial judge determined ownership of the suit property and the validity of the sale without hearing any defense evidence, thereby rendering the judgment effectively *ex parte*, which contravenes the cardinal principle of *audi alteram partem*, which requires that every party be allowed to be heard before an adverse determination is made. On this point, they relied on the cases of **Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR)** and **Onyango v Attorney General (1986–1989) EA 456**. 5. Further, Counsel for the Applicants relied on the Supreme Court of Kenya in **Belinda Murai & Others v Amos Wainaina [1978] LLR 2782 (CAK**), where it was held that procedural errors or inadvertence by counsel ought not to deprive litigants of a fair opportunity to ventilate their claims. 6. Counsel for the Applicants relied on Article 159(2)(d) of the Constitution, which commands courts to administer justice without undue regard for procedural technicalities. 7. The Applicants contend that no prejudice will be suffered by the 1st Respondent/Plaintiff if the matter is reopened; she will have the opportunity to cross-examine and rebut the Applicants’ case. On the other hand, denying the review would permanently deprive the Applicants of property without due process. **The 1st Respondent’s written submissions** 1. Counsel for the 1st Respondent submitted that the Applicants misled this court into believing they were not allowed to be heard, while their Annexures “DW-1 (a)" and “DW-1(b)" clearly show that they defended the suit by filing a joint defense witness statement and written submissions. The court record shows that they repeatedly sought to be heard and filed numerous applications for adjournment, which were invariably granted by the court up to and including the hearing of the case. 2. The 1st Respondent submits that because the orders sought by the Applicants are intended to set aside a judgment, a discretionary remedy falling under the principles of equity, the Applicants have a duty to approach the court with clean hands and disclose all relevant material facts, which they have failed to do. Therefore, they are not entitled to the said orders. They relied on the case of **Laban Muriithi Wamwea Vs Gyto Security Services Limited, Nyeri ELRC No. 177 of 2017**. 3. It is further submitted that, having participated throughout the trial, having filed an appeal against the court's judgment, and having filed the present application, the Applicants are guilty of abuse of the court process and that the instant application ought to be dismissed. **Analysis and determination** 1. The Applicants, who were the Defendants herein, claim that they were prevented from being heard during the trial and now seek to set aside the Court's judgment, to be allowed to defend the substantive suit on the merits by adducing their evidence in chief, and to have their new advocate granted leave to appear on record on their behalf. 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*** ***(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, Rule 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. The Courts have comprehensively articulated the prerequisites for the grant of orders of review. In the case cited by the Respondent, **Francis Njoroge v Stephen Maina Kamore [2018] eKLR**, the Court stated that: ***“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist: -*** ***(a) There must be discovery of a new and important matter which, after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or*** ***(b) There was a mistake or error apparent on the face of the record; or*** ***(c) There were other sufficient reasons; and*** ***(d) The application must have been made without undue delay.”*** 1. In the present case, the Applicants have stated that they seek an order setting aside the judgment and reviewing it because they were not heard during the hearing. From the record, it appears that the firm of C.M King’ori & Company advocates entered an appearance on behalf of the Applicants herein, vide Memorandum of appearance dated 10th February 2020. 2. The firm also filed a statement of defense, a witness statement, and a list of documents, all dated 3rd May 2021. 3. The matter was first scheduled for hearing on June 14, 2022, when the 1st Applicant herein, through his Counsel on record, requested a month to consider settlement. At the next date in Court, it was reported that the parties were negotiating, and a hearing date was set for December 19, 2022. The hearing began on that date, when the Plaintiff testified and closed her case. 4. The Counsel who was holding brief for the Applicants/Defendants herein informed the Court that he did not have a witness for their case because the matter had been mis-diarized, and the suit was scheduled for a defense hearing on the 13th February 2023. 5. At the next hearing date, Counsel for the Defendants offered the excuse that he had just seen the matter on the cause list and had not been served with a hearing notice, even though the matter was fixed for hearing by consent of all parties. He prayed for yet another hearing date for the defense case, which was fixed for June 19, 2023. 6. Yet again, on June 19, 2023, Counsel for Applicants informed the Court that they were not ready to proceed with the defense case because the 3rd Defendant was unable to travel from Mombasa. The hearing was adjourned to September 27, 2023. At that time, Counsel stated that he had informed the defendants of the hearing date, but they failed to appear. After the last adjournment was granted, the Court marked the defense case as closed, ordered the parties to file submissions, and subsequently rendered judgment. 7. The applicants have failed to demonstrate what inadvertence their Counsel caused, as it appears their Counsel was also absent from the hearing of the suit. If they seek to lay blame on the previous Counsel for failing to inform them of the hearing dates, they are also at fault for failing to follow up on their case. Okwany J., in **International Air Transport Association & another v Roskar Travel Limited & 3 others (Civil Case E457 of 2020) [2022] KEHC 200 (KLR) (Commercial and Tax) (17 March 2022) (Ruling)**, cited with approval as follows: ***“In******Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, Kimaru, J expressed himself as follows: "It is trite that a case belongs to a litigant and not to 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.”*** 1. Further, failure to present your case before the Court for being unready to proceed is not a valid ground for review under the above-quoted statutory provisions and court decisions. In the case of **Alpha Fine Foods Limited v. Horeca Kenya Limited & 4 others (2021) eKLR,** the court stated as follows; ***“As the Supreme Court of India in the case of******Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608. stated: -*** ***“the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression "any other sufficient reason " means a reason sufficiently analogous to those specified in the rule.”*** 1. Further, under Section 80 of the Civil Procedure Act Cap 21, an order of review can be granted only in a matter: ***“which an appeal is allowed by this Act, but from which no appeal has been preferred; or no appeal is allowed by this Act.”*** 1. In the present matter, the Applicants have already filed a Notice of Appeal dated February 14, 2025, and therefore cannot seek both a review and an appeal at the same time. 2. Consequently, the current application lacks merit because it does not meet the threshold for the grant of orders of review or setting aside, and it is hereby dismissed with costs. **Dated, signed, and delivered electronically in Nyeri on this 4th day of June, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Gori for the Applicant** **Kendi: Court Assistant** **In the absence of:** **Mr. Warutere for the Respondent**