https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3620

Wang’ombe (Suing as t0he Administatrix of the Estate of Micheal Wang’Ombe Githinji) v Kamanjiri (Sued as the legal representative of the Estate of Violet Wanjugu Kariuki) & 2 others (Environment and Land Case E013 of 2023) [2026] KEELC 3620 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3620 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E013 of 2023 EK Makori, J June 10, 2026 Between Teresa Wanjiru Wang’Ombe (Suing As The Administatrix Of The Estate of Micheal Wang’Ombe Githinji) Plaintiff and Samuel Kariuki Kamanjiri (Sued As The Legal Representative Of The Estate Of Violet Wanjugu Kariuki) 1st Defendant The Land Registrar Nyeri 2nd Defendant The Attorney General 3rd Defendant Ruling 1.The Applicant herein, who is the Plaintiff in the suit filed under Notice of Motion dated 30th October 2025, in which she prays for the following orders:a.Spent.b.That this Honorable Court be pleased to review the Judgment delivered on the 16th day of October 2025 on account of both mistake and the discovery of new and important evidence that was not before the Court.c.That this Honorable Court be pleased to set aside the Judgment delivered on the 16th day of October 2025.d.The court is requested to review the attached list of documents and the judgment delivered on the 16th day of October 2025, thereby allowing the suit in favor of the Plaintiff to save court time and avoid a multiplicity of applications.e.That the costs of this application be provided for. 2.The application is supported by the Applicant's affidavit, in which the Applicant deposed that this Court delivered a judgment on October 16, 2025, in favor of the Defendant, holding that the Plaintiff's suit lacked merit and was dismissed for failure to produce documents as evidence. 3.The Applicant contends that there was a mistake on the part of her counsel, which failed to produce documentation at the time of the hearing. However, there is now new and important evidence that was not adduced at the time of the hearing, and that has a material bearing on the outcome of the suit. 4.As informed by her advocate of record, it is trite law that the mistake of counsel should not be visited upon a client. 5.They explain that counsel for the Plaintiff had instructed someone to file the documents and was informed that they had been filed, but was unaware that the requisite legal documentation was not on the court record. 6.She annexed copies of the Limited Grant of Letters of Administration ad Litem to her husband’s estate, the late Michael Wangombe Githinji (Deceased), dated 4th November 2013 and 14th September 2023. 7.Further, she stated that she has a list of documents, of which the Applicant prays that the court admits and uses to make its decision in this suit, in the interest of justice, and annexed the same. 8.The Applicant deposed that her advocate has informed her on record that Article 159(2)(d) of the Constitution provides that, in exercising judicial authority, one of the principles that shall guide the Courts and tribunals is that justice shall be administered without undue regard to procedural technicalities. Further, Article 40 of the Constitution protects the right of every person against arbitrary deprivation of property by any person, including the Defendant, the Courts, or the state. This right is under threat because her just property has been fraudulently transferred to another. 9.She claims that the deceased, her husband, died, leaving her the suit property known as Thegenge/Karia/1182, which was her only known home. 10.She deposed that the purported sale of the suit premises known as Thegenge/Karia/1182 to one Silvester Wangombe Nderi, via an Agreement purportedly made in 1985, was fraudulent, stating that the signature on the Agreement of sale, allegedly belonging to the deceased, differed from those on Affidavits by the Deceased sworn on the 2nd day of February 1996 and the 13th of February 1997 in a matter, HCCC NO. 225 OF 1993, as attached. 11.Further, the deceased in the Affidavit denounced the Agreement purportedly made between himself and the said Sylvester Wangombe Nderi. 12.The green card indicates that the suit property was sold to one Violet Wanjugu Kariuki by Michael Wang'ombe. Still, there is no connection between the said Michael Wang’ombe and the said Violet Wanjugu Kariuki, who is a stranger to both the deceased and the said Michael Wang'ombe. 13.The Applicant contends that the failure to ensure the documents were on record was an administrative error that ought to have been swept away by the broomstick as envisaged under Article 159(2)(d) of the Constitution, rather than denying her justice in an uncontroverted claim. 14.That she stands to suffer irreparable loss if she is arbitrarily deprived of the suit property, her only home, which she owned with her late husband. 15.As informed by her advocate on record, the newly presented evidence and counsel's mistake fall squarely within the scope of Order 45 Rule 1 of the Civil Procedure Rules, 2010, which provides the grounds for review. The Applicant’s written submissions 16.Counsel for the Applicant submitted that the Defendant/Respondent has not, in any way, countered or rebutted the Plaintiff's averments. This evidence of the Plaintiff remains uncontroverted and is the only evidence on record. Counsel relied on the authorities of Gateway Insurance Co Ltd v Jamila Suleiman & another [2018] eKLR and Interchemie EA Limited vs. Nakuru Veterinary Centre Limited, Nairobi (Milimani) HCCC No. 165B of 2000. 17.It is their submission that there was a mistake on the part of counsel for the Plaintiff, which failed to produce documentation at the time of the hearing. Currently, there is new and important evidence that was not adduced at the time of the hearing, and that has a material bearing on the outcome of the suit. This evidence was not presented to the court at the time of the hearing and ought to be adduced. 18.Further, it is trite law that the mistake of counsel should not be visited upon a client, as recognized in Belinda Muras & 6 Others v Amos Wainaina [1978] KLR, Ezekiel Kamau v Muchoki Mwai Willson [2015] eKLR, and Phillip Chemwolo & Another v Augustine Kubede [1982-88] KLR 103. 19.Counsel cited Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, arguing that the Civil Court has the authority to review its orders. 20.There is not only new evidence that was not produced at the time of the hearing, but there is also an error apparent on the face of the record, and there is no other opportunity to add the relevant documentation. On this point, they relied on the authority of Nyamogo and Nyamogo Advocates v Kago (2001) 1EA 173. 21.It is the Applicant’s submission that an error apparent on the face of the record cannot be precisely or exhaustively defined and must be determined on a case-by-case basis. Thus, the omission is a material procedural error that deprived the Plaintiff/Applicant of the opportunity to prove her case. 22.The Counsel’s plea is that the prejudice to the Plaintiff/Applicant is fatal if left unaddressed, as she would be condemned unheard. They relied on Article 50(1) of the Constitution of Kenya, 2010, which guarantees the right to a fair hearing, and Article 159(2)(d) of the Constitution of Kenya, 2010, which obligates the court to administer justice without undue regard for procedural technicalities. 23.Counsel relied on the following authorities regarding the right to a fair hearing: Douglas Wambua Mutula v Kenya Ports Authority [2020] eKLR; Sabei District Administration v Gasyali & others (1968) E.A. 300 and Mbaki & others v Macharia & another (2005) E.A. 2006. 24.Counsel submits that there will be a breach of the Applicant’s rights under Article 50 of the Constitution if she is not heard solely because of a procedural technicality. The Plaintiff avers that every person is guaranteed that any dispute that the application of the law can resolve can be decided in a fair and public hearing before a court, and prays that the application be allowed. Analysis and Determination 25.The Plaintiff, who is the Applicant in the instant application, instituted this suit vide Plaint dated 7th December 2023, in which the Plaintiff averred that around the year 1985, her late husband, Mr. Michael Wang’ombe Githinji, is alleged to have entered into a sale agreement with one Silvester Wang’ombe Nderi for the purchase of Land Reference Thegenge/Karia/1182, which she claims was a forgery and that the terms of the sale agreement were never complied with. 26.The suit was undefended. However, during the February 4, 2025, hearing, the Plaintiff failed to produce any documents to support her case and relied solely on her witness statement dated December 7, 2023. This Court rendered its judgment on October 16, 2025, dismissing the Plaintiff’s claim because she failed to produce any documents to prove her case. 27.The Applicant now claims that this was an inadvertence on her Counsel’s part and that there is new evidence which was not produced at the time of the hearing, but there is also an error apparent on the face of the record. 28.The statutory provisions governing orders of review are found in Section 80 of the Civil Procedure Act, Cap 21, and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act stipulates that:“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; or(b)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.” 29.Order 45, Rule 1 of the Civil Procedure Rules (2010) provides that:“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.” 30.The Courts have extensively articulated the elements required for orders of review. In the case of Francis Njoroge v Stephen Maina Kamore [2018] eKLR, the Court held that:“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist: -(a)There must be discovery of a new and important matter which, after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or(b)There was a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons, and(d)The application must have been made without undue delay.” 31.The requirements for review are therefore the discovery of a new and important matter that could not have been known at the time the decree or order was issued, a mistake or error apparent on the face of the record, or any other sufficient reason. The application should be made without undue delay. 32.While I note that the application has been made without unreasonable delay, having been filed 15 days after judgment was delivered, I also note that the documents relied on in the supporting affidavit cannot constitute discovery of new and important matter or evidence that, 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, as the Applicant states. This is because these were all documents within the Applicant’s prior knowledge and/or possession, and she failed to file them in Court, which she states was due to a mistake by her Counsel. 33.Thus, we ought to interrogate the second reason for allowing a review, namely, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is the Applicant’s case that her Counsel on record had sent someone else to file a bundle of documents, but the person failed to do so. It appears that Counsel did not notice this at the time of the hearing and only learned of it after the judgment was delivered. 34.As held in the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 Others (2015) eKLR, which this Court cited with approval in the Judgment:“How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not became part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents- this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone but it would take into consideration all facts and evidence on record.” 35.The Plaintiff neither marked nor produced the documents she intended to rely on. The Applicant contends that Counsel’s mistake should not be visited upon a litigant. The Applicant relied on the authority of Ezekiel Kamau v Mchoki Mwai Willson [2015] KEHC 8246 (KLR), in which the Court held that:“Ordinarily a mistake by an advocate would be excusable mistake when it is apparent that a litigant was not part of his counsel’s negligence or lack of diligence in attending to a matter as directed by the court.” 36.Similarly, the Court of Appeal in CFC Stanbic Limited versus John Maina Githaiga & another [2013] eKLR articulated as follows:“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. This Court is guided by the case of Lee G Muthoga V 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.” 37.I also believe that the mistake by the Applicant’s Counsel of record should not be visited upon her. In my opinion, the Applicant, being a layperson, was unaware of the procedures for a hearing and of how documents ought to be produced. The suit was not substantially heard on the merits, and the Applicant can be given a fair opportunity to prosecute her appeal in the interest of justice. 38.Justice Odunga J. (as he then was) held as follows in the case of Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR:“In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances, both prior and subsequent, and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence, the justice of the matter and the good sense of the matter are certainly matters for the judge.” 39.Counsel for the Applicant also relied on Mutula v Kenya Ports Authority (Cause 2 of 2020) [2020] KEELRC 1940 (KLR), in which the Court observed:“The rules of procedure are not to be taken as idle instructions. However, to deny a party the opportunity to be heard simply because they are late by a few days would, in my view, be a great injustice.” 40.It is therefore my opinion that the judgment delivered by this Court on October 16, 2025, qualifies for review, but only based on the Counsel's mistake in failing to file the documents to be relied upon and in failing to guide the Plaintiff on the production of documents during the hearing. The Applicant may be, and is hereby, granted a de novo hearing after filing her bundle of documents and serving the defendants once more. 41.Consequently, the entire judgment is reviewed and set aside, and the applicant is required to file proper documentation within 14 days. I reiterate that the defendant is to be reserved for a de novo hearing. 42.No order as to costs DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 10TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Osoro for the PlaintiffDennis: Court AssistantIn the absence of:The Defendants (in person)