https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9823

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **CONSTITUTIONAL AND HUMAN RIGHTS PETITION NO 18 OF 2018** **VIRGINIA WANGECHI WANGONDU………………………...APPLICANT** **VERSUS** **JOSEPHAT GITHAIGA KANYI………………...…………….RESPONDENT** **RULING** 1. **Virginia Wangechi Wangondu**, hereafter the Petitioner, by her motion dated 17.07.2024 expressed to be brought inter alia under Section 3A of the Civil Procedure Act, Order 45 Rule 1(b) of the Civil Procedure Rules sought review the judgment delivered herein on 23.4.2020. Essentially seeking that the court be pleased to order that the renovation expenses incurred by the Petitioner between 2020 and 2024 amounting to KShs 1,837,427/- be deducted and or factored into the valuation report dated 15.02.2024 by Appraise Realtors Limited, and an order for the removal of the caution placed by **Josephat Githaiga Kanyi** (hereafter the Respondent) on the property known as **LR. No. Kajiado/Kaputiei North/10297.** 2. The motion was supported by the grounds on its face and affidavit sworn by the Petitioner. To the effect that the court having by its judgment found that as Petitioner she was entitled to **85%** of the value of the matrimonial property known as **Kajiado/Kaputiei North/10297**, (hereafter the suit property) and the Respondent **15%**, had further directed that the property be valued and that the Respondent vacate the premises within three months. 3. That subsequent to the valuation of the suit property initially procured by the Respondent without her participation, the court ordered an independent valuation, which was conducted by Appraise Realtors Limited. She contends that the suit property which the Respondent had vacated after judgment had been left in a dilapidated and neglected condition, compelling her to undertake extensive repairs and improvements. As indicated in the photographs exhibited in her affidavit. 4. She averred that despite the permanent injunction restraining the Respondent from interfering with her quiet possession of the property, the Respondent had failed and/or refused to remove the caution registered against the title. According to the Petitioner, she assumed full responsibility for the property over the four years following the Respondent's departure and undertook substantial renovations to restore and improve it. 5. The Petitioner stated that she had commissioned an independent valuation on or about 30th September 2020, which placed the value of the land and improvements at KShs. 8,300,000/- and KShs. 5,200,000/- respectively. And that she had since the valuation carried out significant additional developments, including constructing a perimeter wall to enhance security. Which improvements relieved her from expenses that would otherwise have been incurred to replace items such as the water tank, chicken house, and building materials removed by the Respondent at the time of vacating the property. 6. In demonstrating the extensive improvements she had allegedly undertaken, the Petitioner exhibited numerous photographs together with quotations, receipts, valuation reports, and schedules of expenditure evidencing the renovation costs incurred. 7. Finally, the Petitioner deposed that the expenses incurred in renovating and improving the suit property ought to be taken into account because they were incurred after the judgment had been delivered. Arguing that if the value added through her sole efforts was not factored into the distribution of the suit property, the Respondent would be unjustly enriched at her expense. Hence it was in the interests of justice to allow the motion. 8. The Respondent opposed the motion via his replying affidavit dated 17.10. 2024. Contending that the motion was devoid of merit, unjustified, and an afterthought, he asserted that it was brought for the ulterior purpose of denying him enjoyment of the fruits of a valid and binding judgment that was delivered after a full hearing. Reiterating that the valuation by the valuer appointed by the Institute of Surveyors of Kenya was done with the participation of both parties, after the court apportioned the value of the matrimonial home at the ratio of 85:15% against him and that the subsequent valuation report was adopted without objection on 9th May 2024. He therefore asserted that the valuation process was conducted lawfully and transparently pursuant to the court order and the parties' consent. 9. Stating further that the Petitioner only raised objections after the valuation had been completed and execution proceedings had commenced, he contended that if the Petitioner was dissatisfied with either the valuation or the manner in which it was conducted, the proper course would have been to challenge the consent order or apply to set aside the valuation report. Instead, she had commissioned her own private valuation, which he asserted had no legal basis having been undertaken contrary to the judgment and the consent order. According to him, the Petitioner's unilateral valuation could not override the court-sanctioned valuation upon which execution was based. 10. The Respondent further deposed that despite the valuation establishing the value of the house and the amount payable to him, the Petitioner had failed to refund his 15% share, amounting to Kshs. 1,290,000/-, despite repeated demands and the absence of any order staying execution. In his view, the Petitioner's refusal to honour the judgment constituted deliberate disobedience of the court's orders and amounts to contempt of court. And that after waiting for more than four years after delivery of judgment without receiving payment, he had no alternative but to commence execution proceedings, through a notice to show cause. 11. The Respondent refuted the Petitioner's allegations that he procured the valuation secretly or improperly. Stating that all valuation steps were undertaken pursuant to the parties' consent and court orders, and that no unilateral valuation was ever conducted by him as alleged. He further asserted that if the Petitioner believed the valuation process was flawed, she should have applied to summon the valuer for cross-examination or sought to set aside the consent order, neither of which she has done. He therefore dismissed allegations concerning the valuation process as merely intended to frustrate enforcement of the judgment. 12. The Respondent also denied knowledge of the Petitioner's allegations concerning renovations and expenses allegedly incurred after the judgment. Taking the position that these claims were raised solely to defeat the process of execution and that there was no legal basis for reviewing the judgment on those grounds. Moreover, the issue pertaining to the removal of the caution over the suit property had previously been determined by the court in its ruling of 25th May 2022, rendering that prayer in the motion res judicata. Hence, until the Petitioner satisfies the decree by paying his share, she should not be permitted to benefit from the judgment while avoiding her corresponding obligations. He prayed that the motion which he described as an abuse of the process of the court be dismissed to allow execution to proceed. 13. The Respondent also filed grounds of opposition dated 17.10.2024 in which he reiterated matters raised in his affidavit. And in addition, that the motion did not satisfy the legal requirements for review under Order 45 Rule 1 of the Civil Procedure Rules; that the Petitioner was guilty of inordinate and unexplained delay; that litigation must come to an end; and that the court lacks jurisdiction to grant the post-judgment orders sought in the motion. **Applicant’s Submissions** 1. Through her submissions, the Petitioner invoking Order 45 Rule 1(b) of the Civil Procedure Rules argued that while awarding the Petitioner 85% and the Respondent 15% of the value of the suit property, the court contemplated a proper valuation before the parties' respective entitlements could be ascertained. 2. Restating her affidavit material, she asserted that given the post-judgment renovations which significantly enhanced the value of the suit property, it would be unjust for the Respondent to benefit therefrom. The Petitioner therefore proposed that her renovation costs in the sum of Kshs. 1,837,427/- should first be deducted from the value assigned to the improvements which is KShs. 8,600,000/- before computing the Respondent's 15% entitlement. Leaving a balance of Kshs. 6,762,573/- out of which the Respondent would be entitled to Kshs. 1,014,385.95 instead of Kshs.1,290,000/-, representing a difference of Kshs. 275,614.05. This proposal, she asserted, was not intended to deny the Respondent of his lawful share but to take into account the value added through her post-judgment solo investments. 3. Concerning the court's jurisdiction to review its judgment, the Petitioner relied on **Masila & 2 Others v Krotonite Enterprises Limited, [2025] KEELC 4621 (KLR)** and the East African Court of Appeal decision in **Lakshmi Brothers Ltd v R. Raja & Sons (1966) EA 313**, the latter recognising the limited scope of the "slip rule" jurisdiction. Whose purpose was to recall a judgment where subsequent events reveal that doing so is necessary to give effect to what the court clearly intended or what it would have intended had the matter not been inadvertently omitted. 4. She submitted that such an approach would achieve a fair and equitable distribution of the matrimonial property by ensuring that the Respondent receives 15% of the property's true net value, rather than benefiting from improvements funded exclusively by the Petitioner. **Respondent’s Submissions** 1. On his part, the Respondent submitted that the motion was frivolous, vexatious and an abuse of the court process whose sole purpose is to delay the execution of the judgment delivered on 23rd April 2020. Thereby enabling the Petitioner to avoid paying the Respondent the decretal sum of Kshs. 1,290,000, being 15% of the value of the suit property as determined by the judgment and the valuation report prepared by Appraise Realtors Limited dated 15th February 2024. According to the Respondent, the application is another attempt to frustrate the Respondent from enjoying the fruits of a valid and binding judgment. 2. The Respondent citing a similar previous application dated 16th June 2021, which was conclusively determined by the court by a ruling delivered on 25th May 2022 asserted that the present motion was an attempt to re-litigate determined issues. Moreover, the prayer for review was legally untenable because there exists a valid judgment that has neither been appealed agains, reviewed, vacated or set aside. 3. The Respondent argued that the Applicant's alleged renovations undertaken after the delivery of judgment fall outside the scope of Order 45 Rule 1 of the Civil Procedure Rules, and therefore do not constitute discovery of new and important evidence or any other ground warranting review. Rather, the renovations were voluntary acts undertaken after the judgment and cannot alter the rights already determined by the court. 4. Reiterating the history of the previous court-sanctioned valuation, the Respondent argued that the Applicant's subsequent procurement of an independent valuation report without leave of the court and contrary to the consent of the parties is unlawful and cannot be the basis upon which the earlier court-sanctioned valuation was challenged. 5. Further submitting that the Petitioner’s motion does not satisfy the legal principles governing the setting aside of a consent order as spelt out in **National Bank of Kenya Limited v Ndungu Njau, Civil Appeal No. 211 of 1996, [1997] eKLR**,. To the effect that review is only available to correct a self-evident error or omission on the face of the record and cannot be used to re-open matters that have already been determined or to challenge a court's conclusions on law or fact. And that a review is not an appeal in disguise whereas an erroneous conclusion of law is a ground for appeal rather than review. 6. The Respondent further invoked the doctrine of approbation and reprobation. To submit that the Petitioner having fully participated in the appointment of the joint valuer, accepted the valuation process, and benefited from the Respondent vacating the matrimonial home pursuant to the judgment, could not be allowed to challenge the valuation as the basis for determining the Respondent's monetary entitlement. 7. Citing in support **Behan & Okero Advocates v National Bank of Kenya Limited [2007] eKLR,** where the Court of Appeal affirmed that a party who has approved or benefited from a particular course of action cannot subsequently reject it when it becomes inconvenient. The Court in its decision adopting the principle stated in **Sonko & Another v Patel & Another (1955) 22 EACA 23**, that a litigant who has accepted and acted upon a particular position is estopped from later challenging it. Hence, it was submitted that the Petitioner was estopped from disowning the valuation report. 8. In summation, the Respondent dismissed the motion as a deliberate attempt to manipulate the court process, delay execution and deny the Respondent the fruits of a lawful judgment. Demonstrating bad faith, abuse of the court process, and lack of legal basis. Consequently, the Respondent urged that the motion be dismissed with costs to enable the execution process to proceed without further delay. **Analysis and Determination** 1. The court has considered the motion, rival affidavit material and submissions filed by the parties. The motion principally seeks review of the judgment delivered on 23rd April 2020 pursuant to Order 45 Rule 1 of the Civil Procedure Rules. The Petitioner citing renovation expenses allegedly incurred in respect of the suit property after the court’s judgment. The motion, in the court’s view, turns on the question whether the Petitioner has satisfied the legal threshold for review under Order 45 Rule 1 of the Civil Procedure Rules. 2. The law governing review is settled. Under Order 45 Rule 1 of the Civil Procedure Rules, a court may only review its judgment where there proven discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time the decree was passed, where there exists an error apparent on the face of the record, or for any other sufficient reason. The jurisdiction to review is therefore circumscribed. It is not intended to afford a litigant a second opportunity to reopen a matter already determined on its merits, and so to speak, have another bite at the cherry. 3. The Court of Appeal in **Pancras T. Swai v Kenya Breweries Limited [2014] eKLR** emphasized that review cannot be sought merely because a party is dissatisfied with a judgment or because new arguments have arisen after judgment. The Court held that review cannot be used as a substitute for an appeal or to enable a court to sit on appeal over its own decision. Similarly, **in Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR,** the Court of Appeal reiterated that the power of review must be exercised sparingly and only within the strict confines provided by the Civil Procedure Rules. 4. The Petitioner's case is founded on the claim that upon the Respondent vacating the matrimonial home after the judgment, she incurred expenses amounting to Kshs.1,837,427/- in renovating and making improvements to the said home ,thereby enhancing the value of the property. She contends that unless those expenses are deducted before computing the Respondent's entitlement, he would unjustly benefit from improvements exclusively financed by her after the judgment. 5. While it may well be that substantial post-judgment renovation works were undertaken on the suit property, the issue here is not so much whether the renovations or improvements were done, but rather whether such renovations constitute a lawful basis for reviewing the judgment delivered on 23rd April 2020. 6. In the court's view, they do not. The judgment determined the parties' proprietary interests in the matrimonial property and expressly directed that the property be valued before each party's entitlement could be realized. The valuation was therefore not intended to reopen the question of the parties' respective beneficial interests but merely to quantify the value of those interests in monetary terms. 7. The Petitioner’s subsequent decision to renovate or improve the suit property after the Respondent had vacated cannot retrospectively alter rights that had already crystallized under the judgment. Allowing a party who has admittedly altered the material status quo after the court has determined the parties’ rights in a judgment to use such change in a manner that diminishes the adjudged entitlement of the adverse party not only undermines the principle of finality in litigation, but also offends principles of equity and fairness. 8. The asserted renovations do not amount to new and important matters or evidence as contemplated under Order 45 Rule 1 of the Civil Procedure Rules. The Rule contemplates facts or evidence existing at the time the judgment was delivered but which, despite due diligence, could not have been produced before the court. It does not extend to events deliberately undertaken by a party after judgment has already been delivered. 9. The renovations asserted by the Petitioner were not matters unknown to the Applicant during trial, but subsequent developments intentionally carried out without court sanction several years after the determination of the dispute. Such developments cannot properly be ground for an application for review. In a sense, the Petitioner is the author of her own asserted misfortune and cannot be heard to aver unjust enrichment against the Respondent, on the facts of the case. 10. The record demonstrates that following the judgment, the parties being unable to agree on a valuer, jointly moved the court and recorded a consent to facilitate the appointment of an independent valuer through the Institution of Surveyors of Kenya. Pursuant to that consent, a valuation report was prepared and later adopted by the court without objection, on 9th May, 2024. The Petitioner fully participated in that process. It was only after the valuer quantified the Respondent's entitlement and execution proceedings commenced that she raised a challenge in respect of the valuation. Litigation must eventually come to an end. 11. The Court of Appeal in **Flora N. Wasike v Destimo Wamboko [1988] eKLR** held that a consent order has contractual effect and can only be interfered with on grounds that would justify the setting aside of a contract, such as fraud, collusion, mistake or misrepresentation. The Applicant has neither sought to set aside the consent order nor demonstrated in any way that the valuation process itself was tainted by fraud or illegality. Consequently, the court finds no basis for revisiting the valuation undertaken pursuant to the parties' consent. 12. The Applicant has also invited the court to invoke the interests of justice in order to avoid unjust enrichment by the Respondent. While the court is always guided by the constitutional imperative of substantive justice, that principle cannot be invoked to defeat clear statutory provisions or to reopen concluded litigation without justification. As the Court of Appeal observed in **Parliamentary Service Commission v Martin Nyaga Wambora & Others [2018] eKLR**, the overriding objective and Article 159 of the Constitution are not a licence to disregard procedural law where the law prescribes the manner in which judicial power is to be exercised. The prayer for review is not available to the Petitioner. 13. Similarly, regarding the prayer seeking removal of the caution registered against the suit property title, the court's ruling delivered on 25th May 2022 remains in force. Section 7 of the Civil Procedure Act bars a court from re-adjudicating over issues that have already been finally determined between the same parties. The Court of Appeal in **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR** emphasized that the doctrine of res judicata promotes finality in litigation and prevents parties from repeatedly reopening matters that have already been conclusively determined by a competent court. The prayer relating to the removal of the caution offends the doctrine of res judicata and cannot be entertained again in the same forum. No more need be said on that score. 14. Ultimately, this court is not persuaded that the Applicant has brought her motion within the requirements of Order 45 Rule 1 of the Civil Procedure Rules. Shorn of legalese, the Petitioner’s motion is an attempt to adjust the Respondent's adjudicated entitlement on the basis of events unilaterally orchestrated by the Petitioner several years after the judgment. And perhaps for the collateral purpose of stalling execution against her. Indeed, as asserted by the Respondent the motion borders on abuse of the process of the court. The court found no merit in the motion dated 17th July 2024, and it is hereby dismissed with costs to the Respondent. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 2ND DAY OF JULY, 2026**  **C. MEOLI** **JUDGE** **In the presence of:** **For the Petitioner: Mr. Thuo** **For the Respondent: Mr. Omondi** **C/A: Lepatei**