[2025] KEELC 3001 (KLR)

Njuho v Keboi & 23 others (Environment & Land Case 71 of 2018) [2025] KEELC 3001 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEELC 3001 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 71 of 2018

AA Omollo, J

March 27, 2025

Between

Samuel Ndiba Njuho

Plaintiff

and

Justus Kisemer Keboi

1st Defendant

Daniel K. Lepatei & 22 others & 22 others

2nd Defendant

Ruling

1. The 10th Defendant/Applicant filed notice of motion dated November 21st 2024 supported by an affidavit sworn by Joan Odongo on the same date seeking for the following orders;1. Spent2. That this Court be pleased to review the conditional orders of the court delivered on 21st June 2021 allowing the 10th Defendant/Applicant's application to be struck out.3. That this Honourable Court be please to set aside or vary the condition requiring the deposit of the title.4. That this Honourable Court be pleased to strike out the 10th Defendant/Applicant from the suit unconditionally.5. That this honourable Court be pleased to issue any other orders it may deem fit and just.6. That the costs of and incidental to this application be provided for.

2. The motion was premised on the grounds that on 7th May 2021, the 10th Defendant/Applicant filed an application seeking inter alia that his name (the 10th Defendant) be struck out as a party in the suit. On 21st June 2021, this court issued the said order on the condition that it deposits the title to the suit property in court.

3. That the Title to the suit property had been issued to the 9th Defendant, Patrick Irungu Mburu on 5th May, 2021, before the orders were issued thus the condition of depositing the said Title in Court cannot been fulfilled as the 10th Defendant/Applicant no longer has possession or control over it. The Applicant explained that the failure to disclose the issuance of the title to the 9th Defendant, prior to the court's orders was due to an inadvertent mistake and breakdown in information between the Bank's then representative, Elissa Otemba, and the counsel previously on record for the 10th Defendant/Applicant, Ms. Stephanie Kioko.

4. The applicant deposes that whereas this information was shared with Ms. Kioko, she left the firm without effecting the instructions to review the conditional order which had been overtaken by events as at the time it was made. Further, it came to their attention that the application for review had not been made on 11th November 2024 when the 10th Defendant/Applicant's legal officer followed up to inquire about the status of the matter. Thus, these make sufficient reasons for this court to review the impugned orders to protect the interests of all parties.

5. The Plaintiff opposed the application vide his replying affidavit sworn on 19th December 2024. He deposes that on September 28th 2018 he sued the 9th Defendant, Patrick Irungu Mburu, together with the 10th Defendant the Co-operative Bank of Kenya Limited on the basis that the 9th Defendant had fraudulently acquired his plot LR No. Kajiado/Kisaju/13225 and the 10th Defendant had fraudulently charged the same for Kshs 4,000,000 without carrying out any due diligence and kept the title in its custody as a collateral.

6. The Plaintiff stated that on May 7th 2021, the 10th defendant formally applied to the court to be removed and or struck out as a party and in June 21st 2021, the court ordered that the 10th defendant deposit the title documents in court before being removed as a party. That the 10th defendant did not appeal the Order neither did it claim that it had any difficulties in depositing title for LR No. Kajiado/Kisaju/13225 in court or that it was not in its custody.

7. That since May 7th 2021, nearly 4 years, parties have appeared before court more than ten times and the 10th Defendant has not complied with the court Order. The Plaintiff stated that on 25th November 2024, after nearly 4 years, the 10th defendant now claims that the title in question was released to the 9th defendant before the Order was made and admits that it did not give this information to court on 21st June 2021.

8. That the 9th defendant did not enter appearance in the present suit and neither did he file a defence thus if the 10th defendant released the title to the 9th defendant, it must have been a deliberate move to defeat the ends of justice.

Submissions 9. In support of its application, the 10th Defendant/Applicant filed submissions dated 24th January 2025 while in opposition, the Plaintiff filed submissions dated 6th February 2025. The 10th Defendant submitted that have met the grounds to warrant a review of the conditional order issued on 21st June 2021.

10. According to the Applicant, in submitting meeting the threshold of Order 45 of the Civil Procedure Rules, their grounds for a review is the new evidence that has been discovered, particularly that the title to the suit property was issued to the 9th Defendant before the court's order. That the Applicant is unable to comply with the court's conditional order to deposit the title because it no longer holds the title, and the 9th Defendant, now in possession of the title, is a party to the suit.

11. The 10th Defendant also argued that there is no direct claim against them, as their interest was related to a commercial charge that has since been discharged. The Applicant submitted further that a litigant should not suffer due to the mistakes or omissions of their legal representative, as held in several sets like Salat v Independent Electoral and Boundaries Commission & 7 others (2014) eKLR and Philip Keipto Chemwolo & Another v Augustine Kubende (1986)eKLR.

12. It acknowledges that the oversight regarding the title's issuance was caused by the previous Counsel's failure to inform the court. That the Counsel unexpectedly left the firm, leading to a disruption in case handling and the said inaction was an unintended oversight.

13. They submitted that the delay in filing the review is excusable, citing the departure of Counsel, the passing of the 1st Defendant, and the overall minimal progress of the case over the past two years. In support of this argument, the Applicant relied on the case of Mwangi S. Kimenyi v Attorney General & Another [2014] eKLR, in submitting that the delay should be seen as reasonable given the exceptional circumstances and does not cause unjust disadvantage or prejudice to the other parties.

14. The Plaintiff on the other hand submits that the 10th defendant applied to be discharged from the present suit and that it held the title to the suit property charged to it to secure a loan advanced to the 9th Defendant and which land is claimed by the plaintiff. The Plaintiff poses the question thus, “how can the 10th Defendant apply to review an order they have been granted when they failed to fulfill the conditions upon which the said order was predicated?”

15. The Plaintiff submitted that the 10th Defendant has not produced any evidence to back up its allegations stating that it has not produced an official search to demonstrate when the property was discharged nor has it shown that it registered the inhibition as ordered by the court. That the 10th defendant has not attempted to redeem itself, knowing it discharged the title and from 2018 knew it had been sued because of the said title alongside the 9th defendant but upon discharge gave it to the 9th Defendant and has failed to register the inhibition.

Analysis and Determination: 16. This application seeks to review the orders issued by this court on June 21st 2021 to the 10th Defendant after they sought to be struck out of the suit. The impugned orders granted read as follows;(i)Discharge the charge registered against Title No. Kajiado/Kisaju/13225. (ii)Register an inhibition against Title No. Kajiado/Kisaju/13225 to prevent any other or further dealings with the property.(iii)Discharge of the charge and inhibition to be registered simultaneously.(iv)Upon discharge of the charge the 10th defendant to hand over the title to the Deputy Registrar of the High Court for safe custody pending the hearing and determination of the present suit.

17. Under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, the court may review its decision, inter alia: - on account of some 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.

18. The Applicant states that at the time when the order was made, they did not have the subject title deed in their possession because they had discharged the suit property and released the suit title to the 9th Defendant. That the failure to disclose the issuance of the said title to the 9th Defendant, prior to the court's orders was due to inadvertent mistake and breakdown in communication between the Bank's then representative, Elissa Otemba, and their previous counsel previously, Ms. Stephanie Kioko who they aver left the firm without effecting the instructions to review the conditional order.

19. As to whether there was discovery of new evidence, courts have exercised caution to prevent a party against whom a decision has been entered from procuring new evidence so as to strengthen or change the complexion of the case. In the case of Turbo Highway Eldoret Limited –vs- Synergy Industrial Credit Limited [2016]eKLR Sewe J. cited the case of Rose Kaiza –vs- Angelo Mpanjuiza [2009]eKLR, where the Court of Appeal considered an application for review on the ground of new evidence and held that:-“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.”

20. The new evidence ought to have been not within the knowledge of the party and could not have been accessed when the order was being made. In this case, the 10th Defendant alleges to have issued the title to the suit property to the 9th Defendant on 5th May 2021. The information that the Applicant was not in possession of the suit title and which is now referred to as new evidence was within its (Applicant’s) possession even before the filing of the application dated 5th May 2021. This is discernible from the document produced as annex JO-3 which is dated 19th April 2021. The document (annex JO-3) is a request for release of the “discharge” under the paragraph of title.

21. The 10th Defendant/Applicant is heaping blame on its previous counsels yet cases belong to parties. Why was this information not disclosed in the grounds in support of the motion whose orders are sought to be reviewed? Besides, the Applicant has not annexed any records from the Lands registry to confirm when the discharge of charge was registered. Worse still, the applicant does not explain to the court what prohibited it from complying with the second limb of the order that directed them to register an inhibition to prevent further dealings on the title to the suit land.

22. It is true that parties should not be made to shoulder the consequences of the negligence of their advocates. The same way the Plaintiff should not be the one to bear the inadvertence of advocates of opposing counsel. In the case of Duale Mary Ann Gurre –Vs – Amina Mohamed Mahamood & Another [2014] eKLR, where Hon. Justice Mutungi held as follows: -“An advocate is the agent of the party who instructs him and such instructing client as the principal continues to have the obligation and the duty to ensure that the agent is executing the instructions given. In the case of litigation, the suit belongs to the client and the client has an obligation to do follow up with his Advocate to ensure the Advocate is carrying out the instructions as given. The litigation does not belong to the Advocate but to the client. If the Advocate commits a negligent act the client has an independent cause of action against the Advocate.”

23. The present application dated 21st November 2024 was made almost 3 years after the order sought to be reviewed were issued on 21st June 2021. The explanation for the inordinate delay that there was a breakdown in communication and the lawyer leaving the law firm in my opinion was not sufficient. In applying the doctrines of equity of; equity aids the vigilant not the indolent and he who wants equity must do equity, I am unable to find in favour of the Applicant.

24. First because registering an inhibition by way of a court order did not require the Applicants to be in possession of the suit title. Thus, it failed to do the right thing (do equity). In addition, the indolence in bringing the application has put the Plaintiff to a disadvantage and therefore granting the orders sought is equivalent to letting the Applicant eat its cake and keep it.

25. The application is dismissed for want of merit with costs to the Plaintiff.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF MARCH, 2025A. OMOLLOJUDGE