https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3258

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND COURT AT KAKAMEGA** **ELC CASE NO. 291 OF 2017** **GEORGE EYESWA ELEGWA (Sued as the** **legal representative of the estate of** **the late DAVID ELEGWA ESHITEMI….……….. PLAINTIFF** **VERSUS** **THE TRUSTEE, EMUSONGA** **CHURCH OF GOD………………………………….….DEFENDANT** **AND** **TIMON ISAAC ODOYO ………………………………. APPLICANT** **RULING** **Introduction** 1. Before court is a notice of motion dated 19th February 2025 filed by the applicant seeking the following orders; 2. **That the Honourable court be pleased to set aside its judgment entered herein on behalf of the 1st respondent as against the 2nd respondent on the 18th Day of October 2022.** 3. **That this Honourable court be pleased to grant leave to the applicant to join these proceedings for the purposes of establishing his proprietary interests against both respondents as regards Parcel No. Butsotso/Shikoti/4210 (the suit land)** 4. **That costs be provided for.** 5. The application is predicated on the supporting affidavit sworn by the applicant dated 19th February 2025. The applicant’s case is that he purchased the suit property from one Jonathan Ombayo Mutsembi in 1990 and was duly issued with certificate of title on 2nd February 1990. That thereafter he planted trees thereon and put up his residential home. 6. He further stated that when he was out of the country in 2011, he was informed that the 2nd respondent had moved onto the suit property and established a church thereon which led him to file Kakamega HCC Case No. 44 of 2013 which later became Kakamega MCLE CASE NO. 544 OF 2018. That however on 15th May 2024, the 2nd respondent notified the lower court that judgment had been entered against it on 8th October 2022 in favour of the 1st respondent. 7. That on confirming the judgment, he was compelled to withdraw the lower court case on 29th January 2025. That for the court to make a determination regarding ownership of the suit property, it is fair that he be granted opportunity to demonstrate ownership against the respondents. He attached certificate of title, and pleadings in Kakamega MCELC CASE NO 544 OF 2018. 8. The application was opposed. George Eyeswa Elegwa, the plaintiff/ respondent filed a replying affidavit dated 16th September 2025. He stated that the court was *functus officio,* having delivered its judgment on 18th October 2022. That the title sought to be relied upon by the applicant was long cancelled vide Kakamega CMC Misc Award No. 215 of 2005 and the same was transferred to David Elegwa Eshitemi. 9. Further that the court herein confirmed that the suit property belongs to David Eshitemi although it dismissed the suit. That this is not the court that granted the suit property to David Eshitemi and hence the application will not serve any purpose. That the applicant was served with pleadings in Kakamega CMC Misc Award No. 215 of 2005 via substituted service and the court’s decision in that regard has never been set aside. That the application herein is filed in the wrong forum. That the judgment herein has nothing to do with the applicant’s withdrawal of his suit and that the applicant has joined the 2nd respondent to frustrate the 1st respondent/plaintiff. He attached the decree in respect of the award and evidence of substituted service. 10. The 2nd respondent filed grounds of opposition dated 23rd September 2025. They stated that the application was made in bad faith and an abuse of the court process; that the court was *functus officio* as judgment was made in 2022; that the applicant ought to sue the respondent in a separate suit and that the applicant has not come to court with clean hands. 11. The application was disposed by way of written submissions. On record are submissions filed by the applicant dated 9th October 2025; those of the 1st respondent dated 10th October 2025 and those by the 2nd respondent dated 21st October 2025; all of which the court has duly considered. **Analysis and determination.** 1. The court has carefully considered the application together with the responses thereto as well as the parties’ rival submissions. The issue that arises for the court’s determination is whether the applicant has met the threshold for grant of orders of joinder and orders of review. 2. Order 1 Rule 10 (2) of the Civil Procedure Act grants the court power to join any person to a suit whose presence in a suit is necessary to enable the court to effectually and completely determine all the issues in dispute. 3. For an applicant to be joined to a suit, they ought to demonstrate that they have a recognizable stake in the issues before court and that they need to be involved in the proceedings to protect their interest in the matter. **(See the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] e KLR)** 4. In the case of **EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR**, the Court of Appeal reiterated the prerequisites for joinder of a party tas follows; **“The core of the court’s power to join a party to any proceedings including at the appellate stage, as aptly discussed in Hamisi Yawa & 36,000 others v Tsangwa Ngala Chome & 19 others [2018] eKLR, is to bring on board a necessary party for purposes of determining the real issue(s) in dispute. Also, a joinder of a party is not an automatic right, but one which is granted upon exercise of the discretion of the court concerned. Nonetheless, the court exercises such discretion under defined parameters, that is, it must be satisfied that: -** **a) The Intended party has a personal interest or stake in the matter in question; and that interest is clearly identifiable and proximate enough and not merely peripheral.** **b)The Intended party’s presence would enable court to resolve all the matters in the dispute.** **c)The intended party would suffer prejudice in case of non-joinder.** **d)The joinder of the intended party will not vex the parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.”** 1. In the instant case, the applicant states he had filed his own case being Kakamega CMELC CASE NO. 544 OF 2018 and that when he learnt that a judgment had been delivered in this matter, he proceeded to withdraw his suit. That he is the registered proprietor of the suit property. The plaintiff in response stated that the legality of his registration was determined vide Kakamega Misc Award No. 215 of 2005. 2. In view of the fact that the question of who between the plaintiff and the applicant is the owner of the suit property was determined and the court having held that the property belonged to the plaintiff, no identifiable stake has been demonstrated by the applicant to warrant his joinder to these proceedings. In any event, the withdrawal of the applicant’s suit has no bearing on this matter. Therefore, the prayer for joinder is declined. 3. The law that governs review of court decisions is provided for in Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows; ***“*Any person who considers himself aggrieved –** 1. **by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or** 2. **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.** Order 45 Rule 1 for the Civil Procedure Rules provides as follows; 1. **Any person considering himself aggrieved –** 2. **by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or** 3. **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.** 4. **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.** 5. Therefore, to succeed in seeking orders of review, an applicant ought to demonstrate that; 6. **That there is discovery of new and important matter or evidence, which was not in his knowledge or could not be produced by him after exercise of due diligence; or** 7. **That there is a mistake or error apparent on the face of the record; or** 8. **That there is a sufficient reason; and** 9. **An application for review must be made without unreasonable delay.** 10. In the case of **Evan Bwire vs. Andrew Aginda Civil Appeal No. 147 of 2006** the Court of Appeal stated as follows; “**An application for review will only be allowed on strong grounds particularly if its effect will amount to reopening the application or case afresh.”** 1. In the case of **Nyamogo & Nyamogo vs. Kogo [2001] EA 170*;*** the court discussed the issue of an error apparent on the face of the record, as follows; “**An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law spares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a new adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”** 1. If there is sufficient reason to review its earlier decision, a court may allow an application for review. In the case of **Sadar Mohamed vs. Charan Singh & Another [1959] EA 793*,*** the court held that; **“Any other sufficient reason for the purposes of review refers to the grounds analogous to the other two (for example error apparent on the face of the record and discovery of new and important matter).”** 1. In the instant case, the applicant sought to review the judgment herein on the basis that he withdrew his own claim, when he learnt that judgment had been delivered in this matter and needs to demonstrate ownership of the suit property. 2. Judgment herein was delivered in 2022 while the instant application was filed in 2025. Therefore, the delay of about three years in seeking review is in my view inordinate and no reason for the delay has been given. 3. In addition, no new important evidence has been demonstrated and there is no error apparent on the face of the judgment that has been pointed out by the applicant to warrant grant of review. Besides, no sufficient reason has been presented by the applicant to show that he deserves orders of review. 4. In the premises, I find and hold that the application dated 19th February 2025 lacks merit and the same is hereby dismissed with costs to the respondents. 5. It is so ordered **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 14TH DAY OF MAY, 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Mr. Ndungu for the 2nd respondent No appearance for the applicant No appearance for the 1st respondent Court Assistant: Delphine