https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3214

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LAND CIVIL SUIT NO. E009 OF 2023** **PETERSON MURITHI NYANGA……….…………………………1ST PLAINTIFF** **REOBERT NYAMWEA…………....……………………………...2ND PLAINTIFF** **VERSUS** **JAMES NGARI……………………………………………….….1ST DEFENDANT** **WILLIAM AWANDU…………………………………………..2ND DEFENDANT** **RULING** 1. This is a ruling on the notice of motion dated 16 January 2026, filed by the plaintiffs, which is said to have been brought under **Order 5 Rule 2,** **Order 45,** and **Order 1 Rule 10(2)** of the **Civil Procedure Rules 2010**, and all enabling provisions of the law. They pray for the following orders: 2. ***Spent.*** 3. ***THAT the order of the court made on 18 September 2025 be reviewed and varied.*** 4. ***THAT on review 3rd, 4th and 5th defendants be reinstated in this matter.*** 5. ***THAT the time limited for applying for extension of validity of summons to enter appearance against the 3rd, 4th and 5th defendants be enlarged and this application be deemed to have been filed with such enlarged time.*** 6. ***THAT the validity of summons to enter appearance against the 3rd, 4th and 5th defendants be extended for a further period of twelve (12) months from the date of the order of the court.*** 7. ***THAT alternatively, the Honourable court be pleased to re-issue summons to enter appearance against 3 -5th defendants.*** 8. ***THAT the costs of this application be provided for.*** 9. The motion is based on the grounds listed on the face thereof and the supporting affidavit of the 1st plaintiff, sworn on the instant date. In summary, he asserts that the core issue in this case concerns fraud allegations tied to the actions of the 3rd to 5th defendants, making their involvement in this case essential, yet they were struck out from the proceedings. Due to a procedural oversight, the summons to enter appearance for these defendants expired before they were served, and the court has discretion to extend the time or re-issue the summons. Moreover, contrary to **Order 5 Rule 1(6)** of the **Civil Procedure Rules,** the court did not notify the plaintiffs that the summons to enter appearance was due for collection. 10. This motion is opposed by the defendants’ grounds of opposition dated 17 February 2026, which, although they appeared to be submissions, in summary, it states the following grounds: 11. ***The plaintiffs’ application is an abuse of the court process, legally incompetent and fatally incurable.*** 12. ***The plaintiffs’ suit was filed together with the original summons on or about 9 August 2023, and the summons, valid for 12 months from the date of issue, expired on or about 9th August 2024, depriving this court of discretion to enlarge the time for the validity of the summons.*** 13. ***On 18 September 2025, this court, rightly, noted and determined that the summons had not been served upon the then*** ***3rd, 4th and 5th defendants, namely Boma Surveys Co. Limited, the Director of Surveys and the National Land Commission, and that it had expired and therefore could not be extended.*** 14. ***As at the time the plaintiffs filed the instant application, the validity of the original summons had already expired/lapsed.*** 15. ***The plaintiffs failed to seek extension and or concurrent summons during the lifespan of the original summons. As such, this court is estopped from resuscitating and/or breathing life into summons that had long expired after a lapse of twelve (12) months.*** 16. ***The motion is hopelessly defective and legally untenable as it has been filed/brought after an unreasonable and unexplainable delay.*** 17. ***There is insufficient cause to prompt the court to set aside its orders made on 18th September 2025.*** 18. ***The motion is misconceived, a nonstarter in law and amounts to an unmitigated abuse of the court process, craving to be struck out and or dismissed with costs ex debito justiciae.*** 1. In accordance with the court's directive, the motion has been canvassed through written submissions received from **Ms. Macharia Gakaria & Associates Advocates** for the plaintiff, dated 19 March 2026 and from **Ms. Nyanyuki Co. Advocates** for the defendants, dated 17 February 2026. Consequently, after identifying and examining the issues for determination, this ruling shall, in its subsequent analysis and decision, consider the arguments contained in the rival submissions, and will also take into account applicable law and judicial precedents. 2. Thus, having given careful thought to the motion, its grounds, affidavits and submissions, the distilled issue for determination that will adequately address the matters in controversy is **whether the plaintiffs have met the legal threshold for the review of the orders of 18 September 2025 and/or whether this court is *functus officio.*** 3. With respect to this issue, the relevant provisions governing the review of court decisions are set out in **Section 80** of the **Civil Procedure Act** and **Order 45, Rule 1** of the **CPR**. **Section 80** states 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) by a decree or order from which 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. Further, **Order 45, Rule 1(1),** of the **CPR** provides as follows: *“****(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 salient conditions brought out in **Order 45 Rule 1 (1)** of the **CPR,** such as the discovery of new and important matter, mistake, and sufficient cause, have to be proved by an applicant, and in dealing with such applications, the court has to exercise its judicious discretion. With regard to the prevailing jurisprudence, this court aligns itself with **paragraph 32** of the Supreme Court’s decision in **Parliamentary Service Commission v. Wambora & 36 others [2018] KESC 74 (KLR),** in which it articulated the following non-exhaustive guiding principles for the consideration of applications for review of court decisions: ***“(i)A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this Court. (ii)Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;(iii)An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application. (iv)In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically. (v)During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review. (vi)The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:(a)as a result a wrong decision was arrived at; or(b)it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.”*** 1. In agreement with the defendant’s counsel, this application was submitted with an unreasonable delay, being filed four months subsequent to the court’s issuance of its order. This contravenes the provisions of **Order 45 Rule 1 (1) (b)** of the **Civil Procedure Rules,** which stipulate that applications for review must be filed without unreasonable delay. It appears that the main hearing of the suit, scheduled for 20 January 2026, prompted the plaintiffs to file this motion as an afterthought, and they have not provided any explanation for the delay. This finding alone warrants the dismissal of the motion. 2. Furthermore, the plaintiffs are seeking a review of this court’s orders on the basis that it is necessary for the parties who had been struck out to be rejoined to these proceedings as 3rd to 5th defendants. Additionally, they argue that the court failed to inform them that summons for entering appearance were available for collection. In essence, they are asserting the ground of sufficient cause. 3. Without delving into whether the grounds posited for review meet the threshold of sufficient cause, it is necessary to mention that in its order of 18 September 2025, the court struck out the suit against Boma Surveys Co. Limited, the Director of Surveys and the National LandCommission as the 3rd, 4th and 5th defendants for want of service of summons as envisaged by **Order 5 Rule 2 (7)** of the **Civil Procedure Rules.** 4. Suffice it to say that, though in full concurrence with the grounds of opposition and without dwelling on them, a scrutiny of the orders sought on the motion shows that, by praying for some of the orders therein, the plaintiffs in blatant abuse of court process by seeking inappropriate orders, are callously and ingeniously attempting, through back-door means, to re-argue their case, which is not permissible in review proceedings. Additionally, in the **Parliamentary Service Commission *(Supra),***a decision which this court adopts, it was held that an application for review is not an appeal or a chance for the applicants to re-argue their case, as in the present case. Hence, this court further finds that it is *functus officio* and that the grounds raised are not suitable for review but are appropriate for an appeal. Consequently, this court finds that the reliefs sought are unmerited. 5. In the end, and for the above reasons and findings, the application dated 16 January 2026 is hereby dismissed. Costs shall be in the cause. A mention date shall be issued for purposes of taking a hearing date. Orders accordingly. **Delivered and Dated at Machakos this 26th day of May, 2026.** **HON. A. Y. KOROSS** **JUDGE** **26.05.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Nyanyuki for 1st and 2nd defendants. No appearance for other parties.