https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4317

Teita Estates Ltd v Mwaluma & 10 others (Environment and Land Case 103 of 2007) [2026] KEELC 4317 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEELC 4317 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 103 of 2007 A Ombwayo, J July 10, 2026 Between Teita Estates Limited Plaintiff and Mwanjala Mwaluma 1st Defendant Gibson Mwabili Lembo & 9 others & 9 others 2nd Defendant Ruling Introduction 1.The applicant Teita Sisal Estate LTD prays that this Honourable Court be pleased to set aside, vary, and/or review the orders issued on 29th September 2025, to the extent that the order of Costs to the Defendants / Respondents be and is hereby varied, vacated and set aside and that the order of inhibition issued on 12th August 2025 by Honourable Justice Stephen Kibunja against the Plaintiffs portions of land emanating from the subdivision of L.R. Number 3880/5 be discharged and or vacated and that the costs of this application be provided for. 2.The application is based on that the advocate on record for the Plaintiff was indisposed from the 27th September 2025 until 2nd October 2025. Upon seeing a doctor, he was placed on bed rest of three days. The said advocate had previously inadvertently mis -diarized this matter as coming up for hearing on the 30th September 2025. Owing to this error, counsel was unable to attend court on 29th September 2025 when it was called out by the Honourable Court for hearing of applications. 3.The Plaintiffs legal officer known as Ms. Caroline Makena who had earlier on been notified of the correct court date, was in the court online platform following up on the matter, and known to the Advocate on record, requested the Court to place the file aside to allow her to reach out to the Advocate to inform him that the matter had been called out as she was aware that the Advocate was indisposed. 4.The applicant contends that had the Court placed the file aside as requested on Counsel's behalf, Counsel would have appeared in court and would have made oral submissions on the Plaintiff's behalf for the court's consideration prior to any orders being issued. The orders of 12th August 2025 were to the effect that an inhibition was to be registered against the Plaintiffs property. The said orders ought to have been discharged together with or prior to the matter being marked as withdrawn. The filing of this suit was necessitated by the Defendants' unlawful acts of trespass and destruction of the Plaintiff's crop on the trespassed land and awarding them costs amounts to rewarding illegal conduct. 5The issue of ownership of the suit properties was conclusively determined in Voi ELC Petition No. E004 of 2024 between the parties herein, wherein the Honourable Court found in favour of the Plaintiff. The mistake of counsel should not be visited upon an innocent litigant. 6.The Defendants had filed a Bill of Costs dated 3rd October 2025 which was scheduled for taxation on 29th October 2025 before Hon. Christopher Yalwala. Further that it is in the interests of justice, equity, and fairness that the orders issued on 29th September 2025 be reviewed and/or set aside to vacate the order of costs to the Defendants and to discharge the inhibition orders. The applicant contends that unless the orders sought herein are granted, the Plaintiff will suffer grave prejudice and injustice. 7.In the supporting affidavit of Victor Mungai, an Advocate of the High Court of Kenya practising in the firm of Daly Inamdar Advocates LLP, which firm has conduct of this matter on behalf of the Plaintiff / Applicant ("the Applicant"). 8.He states that the Applicant filed the present suit to restrain further acts of trespass, encroachment, and destruction of crops and property on its land. The Defendants had unlawfully entered upon the Applicant's property, cut down crops, and proceeded to construct and erect permanent structures thereon on L.R. No. 3880. 9.Further, that pursuant to directions in this suit, a survey was conducted on the Applicant's land (L.R. Nos. 3880, 3881, 6924, 9847, and 11378) by the Eleventh Parliament's Departmental Committee on Lands on 2nd December 2014 with the purpose of re- establishing the boundaries and confirming the actual acreage of land owned by the Applicant, with the exercise conducted by the Survey of Kenya and attended by licensed surveyors representing both the Respondents and the larger community. 10.The applicant contends that upon finalization, the report concluded that the Applicant lawfully owned L.R. Nos. 3880/5 (formerly 3880/4 R), 11378 6924 and 9487. There was no encroachment by the Applicant into community, government, or trust land. Settlements like Singila Majengo fell within the Applicant's land. The community had encroached on the Applicant's private property. 11.The Defendants subsequently filed Voi ELC Petition No. E004 of 2024 — Mwasima Mbuwa Welfare Association v. Teita Estate Sisal Limited & 6 Others in which they alleged ownership of the Applicant's land. The Court, however, declined to grant the orders sought and delivered a Judgment finding that the Applicant was the bona fide and legal owner of the suit properties. 12.That on 29th September 2025, this matter came up for hearing of two applications filed by the Defendants one for contempt of court, the second, seeking injunctive orders against the Applicant. On its part, the Applicant had filed an application seeking the discharge of ex- parte orders granted to the Defendants and which application was also scheduled for hearing on the 29th September 2025. The deponent was indisposed between 27th September 2025 and 2nd October 2025 and, upon consulting a doctor on 28th September 2025, was placed on bed rest for three (3) days. The deponent reiterates the grounds of the application. 13.The institution of this suit was necessitated by the Defendants' unlawful acts of trespass and destruction of the Applicant's crops, and the award of costs in their favour effectively rewards the Defendants' illegal conduct. 14.The 1st Defendant, Mnanjala Mwaluma, who is the de facto leader of the trespassers, expressly admitted on record that he and the other Defendants were unlawfully occupying the Applicant's land and sought the Applicant's indulgence to facilitate their vacating of the premises. It is further on record in this matter that he was restrained from carrying out any construction on the Applicant's property. 15.The deponent’s absence from Court was due to illness and medical treatment as well as inadvertent mis-diarization of the hearing date which rendered him incapable of attending Court or giving timely instructions to counsel holding his brief, who was likewise unable to reach him. His failure to attend Court was neither deliberate nor intended to obstruct the course of justice, but was occasioned by circumstances wholly beyond his control. The Honourable Court, on 29th September 2025, directed that costs be awarded to the Defendants, despite the fact that the suit arose from the Defendants own illegal actions which gave rise to the dispute herein. 16.The applicant contends that had he attended Court, he would have opposed any application for award of costs to the Defendants and sought the discharge of the inhibition order issued on 12th August 2025 on the grounds that the issue of ownership of the suit properties was conclusively determined in Voi ELC Petition No. E004 of 2024, wherein the Court affirmed that the applicant is the bona fide and legal owner of the properties. 17.The report by the Survey of Kenya authorised and initiated by the Eleventh Parliament's Departmental Committee on Lands on 2nd December 2014 conclusively found that the Defendants had encroached on the Applicant's private property. 18.In response, Mnjala Mwaluma, one of the respondents states that the Plaintiff's notice of motion application dated 10.10.2025 is not merited as the withdrawal of a suit, be it by a notice of withdrawal, consent of parties and/or leave of the Court, effectively ends the case and it ceases to exist. The suit is terminated forever. The Civil Procedure Rules 2010 that provide for the discontinuance or withdrawal of a suit do not provide for the revocation of withdrawal notice or the setting aside of the suit and/or any of its orders thereto. The court loses jurisdiction to further act on it and that after a suit has been entirely withdrawn as the case herein, a litigant/party cannot breathe life into it by whichever means, not even by a consent setting aside the orders of withdrawal. This is because, once a suit is withdrawn there is no party that exists in relation to that suit as as well enumerated by Justice L.L. Naikuni sitting in Mombasa in Bawan Limited v County Council of Kwale & another [20241 eKLR, once a suit is withdrawn there is no party that exists in relation to that suit. 19.The jurisdiction Of this Honorable Court to hear the applicant's application dated 10.10,Ž025 is denied. The respondent states that the applicant has intentionally failed to disclose that the impugned judgment is subject to an appeal as a notice of appeal and request to be supplied with a copy of the judgment and certified proceedings has been filed. The 'VOI PETITION' that the applicant heavily relies on in his application was never consolidated with the present suit and the same is not part of this Court’s records and/or proceedings at all. 20.That the present suit essentially sought to evict the defendants from the suit property on allegations of trespass while the Voi Petition challenged the authenticity, validity and sanctity of the titles held by the plaintiff herein. Clearly these are 2 distinct suits seeking distinct prayers involving different parties. 21.That despite the judgment in the Voi Petition, the plaintiff had the legal obligation to prove his case of trespass thus the judgment in Voi Petition would not have substantially determined this case despite the applicant's assertions which are malicious and misleading. That the Court records and proceedings can bear witness that despite parties being given an opportunity to engage in an out of Court settlement, the plaintiff has never engaged the Defendants. Furthermore, the Defendants have tried albeit in Vain to seek audience with the Plaintiff but the Plaintiff, whether by design or not, frustrated the process leaving the defendants with no option but to defend the suit. 22.The respondent contends that it was logical, proper and just that the notice to withdraw the whole and entire suit took precedence over the three applications. Thus, when this Court pronounced itself on notice of withdrawal, in automatically affected the suit in its entirety. 23.Order 25 Rule 3 of the Civil Procedure Rules demand that upon A request in writing for withdrawal of a suit by the Plaintiff, the registrar shall sign judgment for the costs of a suit which has been wholly discontinued? and any defendant may apply the hearing for the costs of any part of the claim against him which has been withdrawn. That as held in Mudhihiri Mohammed 2 Others Vs Ahmed Intan & Others [2009/eKLR„ withdrawal of suits is subject to payment of costs. 24.Withdraw of suit is subject to payment of costs when a Defendant has participated in the proceedings, incurred expenses in filing various pleadings and undertaking certain actions, and therefore, entitled to costs. 25.The order for the suit to be withdrawn with costs to the defendants is thus proper, just and within the legal parameters. That further to the foregoing, the applicant seeks this Honorable Court's order of inhibition issued on 1 August 2025 be discharged and/or vacated. That it is trite Law that when a case is withdrawn as is the case herein all exist its orders become a nullity and are automatically set aside because the suit ceases to exist. Rival Submissions 26.The gravamen of the plaintiffs submissions is that this Honourable Court has jurisdiction to hear and determine the Application for review. The Applicant submits that the Respondents’ contention that upon withdrawal of the suit, this Honourable Court became functus officio and is divested of jurisdiction to entertain the present Application. is legally untenable. Section 80 of the Civil Procedure Act, read together with Order 45 of the Civil Procedure Rules, expressly donates jurisdiction to this Court to review its decrees and orders on the grounds of discovery of new matter, error apparent on the face of the record, or for any other sufficient reason. 27.The Court of Appeal in Wangechi Kimita v Wakibiru Mutahi [1985] KECA 73 (KLR), affirmed that a court has unfettered discretion to review its own orders where sufficient cause is shown. 28.In the case of Charles Moracha Onsarigo and Another vs Philip Onyango and 3 others [2014] KEHC 240 (KLR), the High Court reviewed and set aside an order withdrawing a suit with costs awarded to the defendants after finding that the applicants had demonstrated sufficient reasons. The decision affirms that a withdrawal order ought to reviewed where justice so demands. 29.On whether sufficient grounds have been established to warrant the review and/or setting aside of the orders made on 29th September 2025, particularly regarding the award of costs to the Respondent. The Applicant relies on the ground of “sufficient reason” in support of the application for review, within the meaning of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act gives the Court power to review its own orders and Order 45 sets out the rules. 30.The orders of 29th September 2025 were made in circumstances where the Applicant was effectively denied an opportunity to be heard through no fault of its own. The absence of counsel was occasioned by illness, as evidenced at page 136 of the Applicant’s Bundle marked VM and an inadvertent diary error, as also evidenced at page 138 of the Applicant’s Bundle marked VM. The right to be heard is a fundamental tenet of natural justice and a cornerstone of Article 50 of the Constitution. Therefore, an order made in breach of this principle ought to be reviewed or set aside. 31.The genesis of this suit lies squarely in the Respondents’ unlawful acts of trespass and encroachment upon the Applicant’s land, which acts compelled the Applicant to seek the intervention of this Honourable Court. 32.On whether the inhibition orders issued on 12th August ought to be discharged. The orders previously issued on 12th August 2025 were to the effect that an inhibition should be registered against the Applicant’s property. The said orders were interlocutory in nature and were issued pending the determination of the suit. Upon withdrawal of the suit, and in the absence of any substantive claim remaining for determination, the continued subsistence of the inhibition serves no lawful purpose and unjustly fetters the Applicant’s proprietary rights protected under Article 40 of the Constitution. 33.On whether the mistake of counsel should be visited upon the Applicant, the applicant argues that it is a well-established principle that the mistakes of counsel ought not to be visited upon an innocent litigant who has acted diligently in pursuing his legal remedies. On 29th September 2025, the Applicant’s then counsel, Mr. Victor Mungai (who has since left employ of the firm of advocates representing the Applicant) was indisposed and on medically advised bed rest between 27th September and 2nd October 2025, as evidenced at page 136 of the Applicant’s Bundle marked VM. Counsel had also inadvertently mis-diarised the hearing date as 30th September 2025 instead of 29th September 2025, as evidenced at page 138 of the Applicant’s Bundle marked VM. The Applicant’s Legal Officer, Ms. Caroline Makena, informed the Court of counsel’s illness and sought that the matter be briefly stood aside to enable her to reach out to him for purposes of attending the day’s court proceedings virtually, but the request was declined. 34.The legal position on the point of genuine mistake of counsel is well settled. In the case of CFC Stanbic Limited vs John Maina Githaiga & Another [2013] KECA 461 (KLR), the Court of Appeal held that:“On the issue of the mistake of counsel, it is not in dispute that the appellant gave instructions to its advocates in good time once it was served with the pleadings and summons to enter appearance. Therefore the failure to enter appearance and file a defence is clearly attributable to its advocate who failed to enter appearance and file defence in good time. This being the mistake of counsel, the same ought not to be visited upon the appellant. The Court is guided by the case of Lee G Muthoga vs Habib Zurich Finance (K) Ltd & Another Civil Application No.NAI 236 of 2009 where this Court held:“It’s a widely accepted principle of law that a litigant should not suffer because of his advocate’s oversight.”In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel.” 35.The applicant argues that In the present case, the Applicant’s counsel’s absence was due to illness as well as inadvertent misdiarization of the hearing date which rendered him incapable of attending Court or giving timely instructions to other counsel to hold his brief. His failure to attend Court was neither deliberate nor intended to obstruct the course of justice but was occasioned by circumstances wholly beyond his control. 36.The Applicant respectfully submits that the Respondents ought to bear the costs of the PO and the instant Application. The general principle, as enshrined in Section 27 of the Civil Procedure Act, is that costs follow the event, unless the court for good reason orders otherwise. This principle is intended to indemnify the successful party for the expenses incurred in prosecuting or defending a suit or application. 37.In the circumstances, it is only just and equitable that the Respondents, whose conduct precipitated the need for the Application, should bear the attendant costs. With respect to the PO, the Applicant submits that the Respondents’ PO is simply put, bad in law as it clearly disregards Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules which are succinctly clear that this Honourable Court has unfettered jurisdiction to entertain an application for review of its orders where sufficient cause is shown. In the interests of justice and to discourage the abuse of court process, the Respondents should also be ordered to pay the costs of their misguided PO. In light of the foregoing, the Appellant respectfully prays that this Honourable Court exercises its discretion in favour of awarding costs against the Respondents for the instant Application and the PO. Such an order would be consistent with the established principles governing the award of costs, which would serve to indemnify the Applicant for expenses unnecessarily incurred. 38.The gravamen of the defendant’s argument that acting upon a notice of withdrawal and/or discontinuance of the whole and entire suit dated 30.6.2025 filed by the plaintiff, on 29.9.2025 by dint of a court order, the Plaintiff's suit was withdrawn with costs to the Defendants. The respondent cites Order 25 of the Civil Procedure Rules that states as follows: 2.Discontinuance [Order 25, rule 2](1)…(2)Where a suit has been set down for hearing the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.(3)… 3.Costs [Order 25, rule 3] 39.Upon request in writing by any defendant the registrar shall sign judgment for the costs of a suit which has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of the claim against him which has been withdrawn. 40.The respondent cites the case of Jasbir Singh Rai & 3 Others =vs= Tarlochan Singh Rai & 4 Others, Sc Petition No. 4 Of 2012; [2014] EKLR, where the Supreme Court held inter alia as follows: 18.It emerges that the award of costs would normally be guided by the principle that "costs follow the event": the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation… The relevant question is whether or not the circumstances merit an award of costs to the Applicant. 41.In NICHOLAS KIPTOO ARAP KORIR SALAT V. IEBC & 7 OTHERS, SC APP. NO. 16 OF 2014 the Supreme Court held as that:"A party's right to withdraw a matter before the court cannot be taken way. A court cannotbar a party from withdrawing his matter. All that the court can do is to make an order as tocosts where it is deemed appropriate." 42.In MUDHIHIRI MOHAMMED & 2 OTHERS VS AHMED IMANI & OTHERS [2009] EKLR, the Court held as follows:'Costs follow the event, and the withdrawal of a suit is subject to payment of costs. Withdraw of this suit by the Plaintiffs herein was subject of payment of costs to the Defendants who had participated in the proceedings after they were served with summons.'The respondent argues that it is an uncontested fact that the withdrawn suit was filed in theyear 2007 by the Plaintiff alleging trespass by the Defendants and sought for reliefs of injunction and eviction orders. The same was eventually consolidated with Civil Case No.358 Of 1998 – Teita Sisal Estate Limited =vs= Mnjala Mwaluma. The Defendants incurred costs of taking up the services of an advocate who entered appearance anddefended the suit. 43.From the proceedings, it is also an undeniable fact that the Plaintiff through well calculatedmoves filed applications after applications which again, forced the Defendants to incur costsin defending such applications. Finally, the first hearing was conducted on 20.7.2023 beforeHon. Justice N.A. Matheka sitting in Voi where the Defence Counsel Mr. Brian Motuka wasable to attend Court and cross-examine the Plaintiff's witness, Mr. Philip Kyriaz. 44.It is critical for this Honorable Court to take judicial notice that the first hearing took place16 years after the suit was filed. It is an undeniable fact that in the course of the proceedings, numerous orders were issued inter alia orders of status quo to be maintainedpending the hearing and determination of the suit on 8.10.2014 by Justice Mukunya and 4.2.2020 by Justice Yano both sitting in Mombasa but these orders were recklessly, blatantlyand continuously breached by the Plaintiff to the detriment of the Defendants thus prompting the Defendants through the 1st Defendant, Mnjala Mwaluma, to file an application for contempt dated 8.5.2024 which was slotted for hearing on 29.9.2025. Stilldespite service of such contempt application upon the Plaintiff through its firm of Advocates, the Plaintiff regardless in a show of might and total disregard of Court orders further continued to breach such orders much to the detriment of the Defendants thus prompting the Defendants to file a notice of motion application dated 11.8.2025 where substantive orders of inhibition were issued. 45.In GArun Investment Limited & Another V Aguthi Enterprises Limited; Hussein Ibrahim Nuni (hussein Ibrahim Nuni) [2020] KEELC 3471 (KLR) the Court held as follows:'Having gone through the proceedings, this Court notes that the Defendant had entered appearance and taken steps to defend the suit and in filing the suit papers in Court togetherwith the Advocates attendance in Court. Further the Court notes that costs were incurred by the Defendant/Applicant in carrying out the above exercises. From the proceedings, while the interested party had no objection the suit being withdrawn with no orders to coststhe record reveal that the Defendant had sought for the costs of the suit. Bearing in mind that the Defendant/ Applicant had taken steps from the date the suit was filed in 2015 to defend the suit and had incurred costs, it is this Court's considered view that the Defendantis entitled to costs as there was no good reason to decline the costs to the Defendant/Applicant as required. Further, the Plaintiff/Respondents in defending the instantApplication have also not given any reason to warrant the Defendant not being granted costs as per Order 25, Rule 3 of the Civil Procedure Rules… Going by the above provisionsof law, this Court finds and holds that the Defendant is entitled to costs of the suit if the suithas been withdrawn. Order 25 as read together with Section 27 of the Civil Procedure Act gives the Court the discretion to grant cost unless there is a sufficient reason not to grantthe costs. As already discussed above by this Court the circumstances of this case are thatthe Defendant having gone through various steps to defend this suit is therefore entitled tothe costs of the suit.' 46.Since the inception of the suit in 2007, the Defendants have been nothing short of dedicated, diligent and committed litigants and to be precise, law abiding litigants who havealways obeyed every Court directive and orders. However, this cannot be said for the Plaintiff/Applicant. The Defendants by themselves and their advocates have at all materialtimes attended Court without fail demonstrating their desire and willingness to defend thesuit even when the Plaintiff had absolutely no intention of prosecuting its case. 47.Given that costs are at the discretion of the Court and such discretion must be exercisedjudiciously, it would be a great injustice, in the absence of any sufficient and/or good cause,to deny the Defendants costs who have literally gone bankrupt and entered into numerousdebts to defend the suit which was ultimately withdrawn. 48.Section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rulesempowers this Court to review its own judgment, orders and directive on the followinggrounds:a.Discovery of new and important matter of 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 made.b.On account of some mistake or error apparent on the face of the record. c. For any other sufficient reason. 49.In Okiya Omtatah Okoiti =vs= Commissioner General, Kenya Revenue Authority & 2 Others [2017] KEHC 9600 (KLR) the Hon Court stated inter alia as follows: 25.The High Court has inherent jurisdiction to vacate or vary its own orders in cases where there would otherwise be an irremediable injustice, but this power will only be exercised in exceptional circumstances, where justice requires the Court to act, or where amistake has occurred which, if unrepaired, would cause a serious injustice.[11] Examplesthough not exhaustive include:-a.Varying an order to give effect to the meaning the court intended the order to have or to resolve an ambiguity.b.Reviewing an order made ex parte, the basis of which has been said to be natural justice. Under this category can also be included denial of procedural fairness through no fault of a party. The court may set aside an order at any time if the order was made in the absence of a party if service was not proper or for sufficient reason.c.The occurrence of circumstances after the order which warrant varying the order.d.Entertaining an application for extension of time for appealing against the order after the time for compliance with that order has expired. 26.For an application of this nature to succeed, the court is required to first consider and satisfy itself that the applicant has a strong case likely to succeed on the merits.[12] Secondly, the court must be satisfied that the applicant will be irreparably injured, if stay is refused.[13] Thirdly, the court must consider whether the issuance of a stay order will substantially injure the other parties interested in proceedings.[14] Lastly, the court is bound to consider where the public interest lies.[15]” Analysis and determination 50.The application is premised on order 45 of the civil procedure rules 2010 that governs the review of judgments and orders. It allows an aggrieved person to ask the trial court to re- examine its own decision if there is a mistake, new evidence, or any other sufficient reason,provided that no appeal has already been filed. The rule 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; orb.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.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. 51.The applicant states that his application is based on sufficient reasons for setting aside theorder. Under Order 45, Rule 1 of the Civil Procedure Rules (read with Section 80 of the CivilProcedure Act), a court may review its judgment if there is discovery of new evidence, an error apparent on the record, or "any other sufficient reason". "Sufficient reason" grants thecourt broad, flexible judicial discretion to prevent a miscarriage of justice. 52.In the landmark case of Pancras T. Swai v. Kenya Breweries Limited, the Court of Appeal interpreted "for any sufficient reason" as providing a broad exercise of judicial discretion.The Court clarified that this phrase should not be narrowly defined or strictly limited to theother listed grounds (discovery of new evidence or an error on the face of record) 53.In Wangechi Kimita & Another v. Mutahi Wakabiru [[1980 -88, 1 KAR 977], the Court of Appeal established that the words "or any sufficient reason" extend the scope of review. Itmeans the sufficient reason does not need to be of the same nature (ejusdem generis) as thediscovery of new evidence or a mistake on the face of the record. 54.Section 80 of the Civil Procedure Act empowers the High Court to review its decree ororders as follows;80.Any person who considers himself aggrieved-(a)by a decree or orderfrom 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 areview of judgement to the Court, which passed the decree or made the order, and theCourt may make such order thereon as it thinks fit. 55.Order 45 Rule 1 of the Civil Procedure Rules sets down the criteria for review applications 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.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. 56.Courts of superior jurisdiction have variously interpreted the foregoing provisions. In Republic -vs-Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR the Courtset out the principles to consider in the review of its own decisions. It was observed;i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1has to be interpreted in the light of other specified grounds.iii.An error which is not self- evident and which can be discovered by a long process of reasoning cannot be treated as anerror apparent on the face of record justifying exercise of power under Section 80.iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.Adecision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an Application for review, the court must confine its adjudicationwith reference to material, which was available at the time of initial decision. The happeningof some subsequent event or development cannot be taken note of for declaring the initialorder/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also toshow that such matter or evidence was not within its knowledge and even after the exerciseof due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which isprima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of reviewby a civil court and consequently by the appellate courts. The words occurring in Section 80mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation onthe power of the court, but such limitations have been provided for in Order 45 Rule 1.x.Thepower of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. 57.The Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau, remarked on review applications as follows: -… A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law. 58.In Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) the Court considered the import of some mistake or error apparent on the face of the record as captured in Order 45 of the Civil Procedure Rules. It rendered itself thus: -… Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on pointswhere there may conceivably be two opinions can hardly be said to be an error apparent onthe face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an errorcannot be cured by an order or review. The power of review is available only when there isan error apparent on the face of the record. I emphasize that review proceedings are not anappeal. The review must be confined to error apparent on the face of the record and re- appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible. 59.Turning to this case, the applicant does not intend to review the withdrawal of the suit, he isonly interested in the order of costs. No sufficient reason has been shown why he should notpay costs. The existence of another suit cannot be a reason for the denial of costs to the defendant. The defendant was entitled to costs of the withdrawn suit. The upshot of the above is that there are no grounds for review. 60.The application is allowed only to the extent that the order of inhibition issued on 12thAugust 2025 by Honourable Justice Stephen Kibunja against the Plaintiffs portions of landemanating from the subdivision of L.R. Number 3880/5 be and is hereby discharged and orvacated, however the application for the variation of the order for costs is dismissed withcosts. SIGNED BY/FOR:★ THE JUDICIARY OF KENYA ★HON. JUSTICE ANTONY O. OMBWAYO MOMBASA ENVIRONMENT AND LAND COURTEnvironment and Land Court Date: 2026-07-10 07:05:39The Judiciary of KenyaDoc IDENTITY: 136385281972931552725286779 Tracking Number:OOKNCM2026