https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4910

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **CASE NO. ELCOS E002 OF 2023** 1. **BAKARI HUSSEIN SIWA** 2. **CHARO JOSEPH KAHINDI** 3. **ESTHER WANJIRU NGUGI & 18 OTHERS …… PLAINTIFFS** **VERSUS** **HARRY BINNS ………………………………….………. DEFENDANT** **HENRY BINNS …………………………..................... DEFENDANT** **RULING** 1. By the Notice of Motion dated 1st October 2025, the Plaintiffs/Applicants pray for orders as follows: 2. **Spent;** 3. **That this Honourable Court be pleased to review and or set aside the Judgement issued on 30th April 2025 before Hon. Justice Olola;** 4. **That this Honourabe Court be pleased to enjoin East African & Lighting Company Limited now the current Kenya Power and Lighting Company in the suit;** 5. **Spent; and** 6. **That costs of this application be provided for** 7. The application is supported by an Affidavit sworn by the 1st Plaintiff – Bakari Hussein Siwa on 1st October 2025 and is premised on the grounds: 8. **That the Plaintiffs filed a suit for adverse possession and a judgment was delivered on 30th April 2025;** 9. **That on the face of the judgment it was noted that the East African Power & Lighting Company now the current Kenya Power & Lighting Company Limited were not served to shed more light about the caveat dated 9th April 1980;** 10. **That we are now verily informed that the said Company was not aware about the suit and never participated at the hearing yet they have a registered caveat over the suit property;** 11. **That we are now convinced that the proposed Interested Party should be accorded a fair hearing as they did not have their day in Court;** 12. **That we again invited a certified surveyor to prepare for us a current report indicating and showing clear demarcation of each member occupying the plots;** 13. **That setting aside the judgment will enable them to have their day in Court;** 14. **That the course of justice will be compromised if the judgment is not reviewed and or set aside and we stand to suffer imminent eviction and irreparable loss if this Honourable Court does not come to our aid; and** 15. **That no party will be prejudiced if our application is allowed.** 16. Neither the Defendants nor the Interested Parties filed any pleadings in opposition to the application. 17. I have carefully perused and considered the Plaintiff’s application. I have similarly perused and considered the submissions placed before the Court by Ms. Barayan, Learned Counsel for the Plaintiffs. 18. By their application before the Court, the Plaintiffs urge the Court to be pleased to review and/or set aside the judgment delivered herein on 30th April 2025 and that the Court be pleased to enjoin the Kenya Power and Lighting Company Limited in the suit. 19. On matters of review, Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 sets out the grounds as follows: **“(1) Any person considering himself aggrieved—** 1. **by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or** 2. **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.”** 3. Arising from the foregoing, it was clear to me that an application for review can only succeed on the grounds of: 4. **Discovery of a new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made;** 5. **On account of some mistake or error apparent on the face of the record;** 6. **For any other sufficient reason; and** 7. **The application must be made without undue delay.** 8. In the matter herein the Plaintiffs aver that they had instituted this suit seeking orders of adverse possession. It is their case that upon delivery of the judgment herein on 30th April 2025, they had noted that the East African Power & Lighting Company Limited (now Kenya Power and Lighting Company Limited) were not served to shed more light about a caveat dated 9th April 1980. 9. The Plaintiffs assert that they are now informed that the said Company was not aware about the suit and never participated at the hearing despite the fact that they have a caveat registered on the suit property. It is the Plaintiffs’ case that they are now convinced that the Power Company should be accorded a fair hearing by being joined herein as an Interested Party. 10. In addition, the Plaintiffs aver that they have now invited a certified surveyor to prepare for them a current report indicating and showing the demarcation for each member occupying the plots. 11. In my considered view the grounds set out by the Plaintiffs did not meet the criteria set out under Order 45 Rule 1(1) of the Civil Procedure Rules. I say so because when they filed the suit herein, the Plaintiffs had attached as part of their evidence a copy of a certificate of official search issued to them on 18th June 2020. A perusal of the search reveals at the encumbrances section that there was a caveat dated 9th April 1980 registered on the title. That being the case, I was not persuaded that the same was a recent discovery that could not have been acted on at the time this matter went to trial. 12. It was also clear to me that the preparation of a survey report after the judgment that dismissed the Plaintiff’s case was an irregular attempt to fill-in the gaps that had been identified in the Plaintiff’s case. I was not again persuaded that an application for review can be made for purposes of filling-in gaps in the evidence submitted by a party long after judgment had been delivered. 13. In the premises I was not persuaded that there was merit in the Motion dated 1st October 2025. The same is dismissed with no order as to costs. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Ms. Barayan Advocate for the Plaintiffs/Applicants c) No appearance for the Defendants/Respondents