https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4853

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLOS E020 OF 2025** **CONSOLIDATED WITH ELCLOS E051 OF 2025** **SARAPHINA WANJIRU THUITA……………..………………..…1ST APPLICANT/RESPONDENT** **MILCAH WANJIKU MWANGI……………………………………2ND APPLICANT/RESPONDENT** **-VERSUS-** **ESTHER WAMBUI MWANGI (Legal representative** **of the estate of FRANCIS MWANGI NJUGUNA ………....…..... 1ST RESPONDENT/APPLICANT** **LAND REGISTRAR MURANG’A COUNTY……………………………………..2ND RESPONDENT** **HON. ATTORNEY GENERAL………………………………………….…………3RD RESPONDENT** **AND** **ESTHER WAMBUI MWANGI Suing as the legal representative** **of the estate of FRANCIS MWANGI NJUGUNA ………….……..…….. PLAINTIFF/APPLICANT** **VERSUS** **SIMON NJUGUNA MWANGI …………………...…….……….1ST DEFENDANT/RESPONDENT** **PETER NDUNGU MWANGI …………………...…….………….2ND DEFENDANT/RESPONDENT** **RULING** 1. This ruling is on the notice of motion dated 30-3-2026. The motion which is by 1st Respondent is brought under **Section 80 of the Civil Procedure Act, Order 45 rule 1** of the **Civil Procedure Act and Sections 1A, 1B and 3A** of the same Act. The motion seeks the following orders. 2. **Review of the ruling dated 11-2-2026.** 3. **Correction/expunging of the erroneous admission contained in the Applicants affidavit which arose from inadvertence and error on the face of the record.** 4. **The court be pleased to re-open the application dated 3-9-2025 for hearing.** 5. **Leave be granted to the 1st Respondent to file a reply on a corrected affidavit clarifying the error.** 6. **Consolidation of this case with ELC Case No. E051/2025 Murang’a because both suits concern the same subject matter and the same issues.** 7. **That the costs of this application be in the cause.** 8. The motion is based on seven(7) grounds and is supported by the affidavit of the 1st Respondent dated 30-3-2026. The essence of the grounds and the affidavit is as follows. Firstly, there exists an error apparent on the face of the record arising from an inadvertent admission in the Applicant’s replying affidavit at paragraph 7 sworn on 11-9-2025 which does not reflect the true position of facts and was made through a mistake and not to mislead the Court. Secondly, this error is curable under **Order 45 of the Civil Procedure Rules** and unless the motion is allowed, the Applicant will suffer prejudice as the Court decision will be based on a manifest mistake. Thirdly, the consolidation of the two related matters will promote efficient determination, avoid multiplicity of suits and prevent conflicting decisions. Finally, the motion has been filed without unreasonable delay. 9. The motion is opposed by the Plaintiffs who have sworn a replying affidavit dated 22-5-2026 in which they rely as follows. One, the motion is brought in bad faith with the aim of misleading the court and causing delay. The correct version is the first one and it is the Plaintiffs who are in occupation of the suit land. Two, even the corrected affidavit dated 18-3-2026 states at paragraph 3 that it is the Plaintiffs in occupation. Three, the 1st Respondent is engaging in a systematic alteration of the pleading by pretending to correct the alleged inadvertent admission in paragraph 7 which are the subject of the court ruling and then take advantage to correct the other admission by sneaking in averments which suit her purpose that she is in possession which is not the case. The court should not therefore allow the motion except the prayer for consolidation. 10. Counsel for the parties filed written submissions dated 26-5-2026 and 10-6-2026. The issues identified are as here below. 1. **Whether this court has jurisdiction to review and set and set aside the ruling of 11-2-2026.** 2. **Whether the erroneous admission in the Applicant’s replying affidavit constitutes an error apparent on the face of the record.** 3. **Whether the Applicant should be granted leave to file a further affidavit clarifying an inadvertent error.** 4. **Whether the Respondents shall suffer prejudice if the orders sought are granted.** 5. I have carefully considered the motion in its entirety including the affidavit in support and the grounds, the affidavit in opposition, the written submissions, the case law cited and the issues identified by learned counsel. I find that the issues identified will resolve the motion. I find as follows on the four issues. 6. On the first issue, I find that the Court has the power to review the ruling of 11-2-2026. This power is however confined by Order 45 rule 1 of the Civil Procedure Rules to cases where, 7. **No appeal has been preferred, (b) discovery of new and important matter or evidence which was not within the knowledge of the Applicant, or (c) some mistake or error apparent on the face of the record or (d) other sufficient reason.** It is only in the above circumstances that the Court will exercise its jurisdiction. 1. Regarding error apparent on the face of the record, it is my finding that the phrase means error in the Court’s record, order, judgement or decree rather than an error made by a party. In the case of **National Bank of Kenya Ltd vs. Ndungu Njau Civil Appeal No. 211 of 1996** the Court of Appeal held that: **“ A review may be granted wherever the Court considers it 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 establish. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.”** A party’s error is not an error apparent on the face of the record unless it has resulted in an obvious error in the Court’s record that the Court can readily identify and correct. An error apparent on the face of the record is an obvious and self-evident error in the Court’s decision on record and does not require elaborate argument to establish. It would include a mathematical or clerical mistake, citing the wrong statutory provision where the mistake is obvious, overlooking an undisputed material fact already or record or making an order inconsistent with the judgment. Where a party fails to produce evidence, advances a wrong legal argument, makes a mistaken concession etcetra, such errors do not count as errors apparent on the face of the record. 1. The Court will not restrict a party on what it wishes to file as evidence in support of its case. The 1st Respondent has a free hand to file additional evidence or even to amend her pleadings. This will not however warrant review of the ruling dated 11-2-2026. The 1st Respondent will also expose herself to cross-examination on how she can have two(2) different positions on a critical issue when her evidence in both situations is given on oath. She runs a credibility risk. 2. Finally I find that the Plaintiffs will suffer prejudice because this application has resulted in delay in the prosecution of this suit and it is making this litigation more costly than if there was no such motion. 3. In conclusion and for the reasons already given, I find **no merit** in the motion dated 30-3-2026 which **I dismiss** with costs. **Dated, Signed and Delivered virtually at Murang’a this 27th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Applicants’ Counsel – Mr Njogu** **1st Respondent’s – Counsel – Michira**