[2025] KEELC 8 (KLR)

Wakhanu & 2 others v Wakhanu & another (Environment & Land Case 50 of 2018) [2025] KEELC 8 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 8 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment & Land Case 50 of 2018

DO Ohungo, J

January 16, 2025

Between

Issa Egesa Wakhanu

1st Plaintiff

Okoyana Khaleed Ramadhan

2nd Plaintiff

Saleh Khaleed Wakhanu

3rd Plaintiff

and

Henry Efumbi Wakhanu

1st Defendant

Cornel Masinde Wakhanu

2nd Defendant

Ruling

1. Judgment was delivered in this matter on 27th July 2021 by N.A. Matheka, J. as follows:I find that the plaintiffs have proved their case on a balance of probabilities and I grant the following orders;1. The defendants are to vacate the said Land parcels No. Bunyala/Budonga/1708, Bunyala/Budonga/1710 and Bunyala/Budonga/1709 within the next 90 (ninety) days from the date of this judgement and indefault eviction order to issue.2. Thereafter a permanent injunction to issue to restrain the defendants by themselves, their relatives, servants, agents or otherwise howsoever from entering, remaining or using the said Land Title Nos. Bunyala/Budonga/1708, Bunyala/Budonga/1710 and Bunyala/Budonga/1709. 3.No orders as to Costs.

2. Following delivery of the judgment, the matter remained dormant until 9th February 2024, when the Defendants filed Notice of Motion dated 7th February 2024, which is the subject of this ruling. The following orders are sought in the application:1. That this Honourable Court be pleased to certify this application as urgent.2. That the Honourable court be pleased to order stay of execution of judgment dated 27th July 2021 pending the hearing and determination of this application.3. That the Honourable Court be pleased to recall, review and/or set aside the judgment delivered on the 27th day of July, 2021. 4.That this Honourable Court be pleased tore-open (sic) and re-examine the evidence on record.5. That this Honourable Court be pleased to allow the Applicants to file adduce evidence and defend the suit; thus exercising their right to be heard.6. That the Respondents provide the costs of this application.

3. The application is based on the grounds stated on its face and is supported by an affidavit sworn by Cornel Masinde Wakhanu. He deposed that his co-defendant Henry Efumbi Wakhanu who was his brother passed away on 9th August 2021 after prolonged illness which subsisted throughout the time when this case was to be heard. He added that he (Cornel Masinde Wakhanu) was also ill when he was required to attend court and could not therefore attend. That after filing their defence, they started collecting evidence but could not file it owing to illness.

4. Cornel Masinde Wakhanu further deposed that by the time his deceased father transferred portions of the suit properties to the Plaintiffs, he (Cornel Masinde Wakhanu) and his brothers had settled on the said properties for longer than 24 years and extensively developed them. That his deceased father suffered from dementia and diabetes at the time and could not therefore have known what he was doing. He also deposed that the Defendants had become adverse possessors by the year 2018 when this case was filed and that they ought not to be condemned unheard.

5. The Plaintiffs opposed the application through an affidavit sworn by Saleh Khaleed Wakhanu. He deposed that the applicants were represented by M Kiveu Advocate who entered appearance, filed defence on their behalf on 6th March 2012 and was later allowed to cease acting on 18th October 2020 owing to lack of instructions. He added that the Defendants were personally served at all stages including the date of judgment and that the present application is brought too late in the day and an afterthought. That the applicants have not demonstrated that they were sick on the specific days when the matter came up for hearing and have also not explained why the alleged illness was not communicated to the Court.

6. Saleh Khaleed Wakhanu further deposed that their father did not suffer from dementia and that the medical notes to that effect had been generated for that purpose. That in any case, the applicants ought to have filed compliance documents and raised the issue of dementia as part of their defence. He also stated that the applicants’ claim of adverse possession could not stand either against their father or the Plaintiffs.

7. The application was canvassed through written submissions. The Defendants/Applicants filed submissions dated 30th September 2024 while the Plaintiffs/Respondents filed submissions dated 4th March 2024.

8. The Defendants/Applicants relied on Order 45 Rule 1(b) of the Civil Procedure Rules, Section 80 of the Civil Procedure Act and the case of Anwar Ali & another v Monicah Muthoni & another [2021] eKLR and argued that they are entitled to review since they had adduced sufficient evidence to show that they were ill and that there was new evidence showing that their father was not of a sound and free mind. They contended, in conclusion, that they had established sufficient cause to seek for review of the judgment.

9. On their part, the Plaintiffs/Respondents relied on the case of Omote & another v Ogutu (Civil Appeal E005 of 2021) [2022] KEHC 16441 (KLR) (19 December 2022) (Ruling) and argued that the applicants had not shown an error or mistake to warrant review. They further contended that the applicants had not they could not obtain and present the alleged evidence on their father’s condition at the time judgment was passed, yet their father passed away before the filing of this case. Consequently, the Plaintiffs/Respondents argued that the application is unmerited and urged the Court to dismiss it with costs.

10. I have carefully considered the application, the affidavits and the submissions. Arising from their submissions, the applicants have manifestly focused their application on sole question of whether review should be granted. That is the issue for determination.

11. The relief of review is statutorily anchored on Section 80 of the Civil Procedure Act which provides: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; orb.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.

12. Additionally, Order 45 Rule 1 of the Civil Procure Rules provides as follows: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.

13. The Defendants/Applicants’ quest for review is anchored on two pillars; Firstly, that there is new evidence showing that their deceased father suffered from dementia which hampered his capacity to know what he was doing. Secondly, that they had become adverse possessors by the year 2018.

14. While considering an application for review grounded on alleged discovery of new and important evidence, the Court is required to exercise great caution since an application for review is not meant to afford the losing party an opportunity to re-litigate or re-open a matter merely on account of dissatisfaction with the outcome. In D. J. Lowe & Company Limited vs Banque Indosuez [1998] eKLR, the Court of Appeal stated:Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.

15. The Defendants/Applicants’ claim that they had become adverse possessors by the year 2018 is not a question of evidence and has no place in an application for review. Such an issue ought to have been placed before the trial Court for determination and any dissatisfaction with the outcome resolved through an appeal.

16. Regarding the Defendants/Applicants’ contention that there is new evidence showing that their deceased father suffered from dementia which hampered his capacity to know what he was doing, they must demonstrate that there is indeed new evidence and if so, that there was no laxity on their part in adducing that evidence at the hearing.

17. From the material that the Defendants/Applicants have availed, their father passed away on 10th August 2007. Needless to emphasis, the alleged dementia could only have existed prior to 10th August 2007. This case was filed in the High Court on 15th September 2011, over Four years after the death. The Defendants/Applicants entered appearance and filed their defence. They have not disputed service of hearing notices and have not urged for setting aside of the judgment for want of service. In those circumstances, I am not persuaded that there is any new evidence or that there was no laxity in adducing such evidence at the hearing. The Defendants/Applicants squandered the opportunity to adduce the evidence, a situation that is not curable through review.

18. It is a requirement of Order 45 Rule 1 that an application for review be filed without unreasonable delay. Judgment was delivered in this matter on 27th July 2021 while the present application was filed over Two and a Half years later, on 9th February 2024. The delay is unreasonable and the claim that the Defendants were ill does not excuse them since they were served.

19. I find no merit in Notice of Motion dated 7th February 2024 and I therefore dismiss it. In view of the family relationship between the parties, I make no order as to costs.

DATED, SIGNED, AND DELIVERED THIS 16TH DAY OF JANUARY 2025. D. O. OHUNGOJUDGEDelivered in the presence of:Mr Nyikuli for the PlaintiffsNo appearance for the DefendantsCourt Assistant: B Kerubo