https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5142

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E335 OF 2021** **ANTHONY CHEGE WANJIRU** **[suing in his capacity as the personal** **Representative of the Estate of HARRISON** **WAWERU KIMENGERE Deceased] - PLAINTIFF /RESPONDENT** **VS** **ASUNTA WANGECHI WACHIRA -1ST DEFENDANT/APPLICANT** **KARAGITA EAST AFRICA LTD -2ND DEFENDANT /RESPONDENT** **THE CHIEF LAND REGISTRAR -3RD DEFENDANT/RESPONDENT** **RULING** 1. The Motion before the court dated 13/4/2026 is filed by the applicant herein seeking orders as follows; 1. The firm of Karoki & Co Advocates be granted leave to come on record for the applicant in place of Swaka & Co Advocates. 2. The court be pleased to grant a stay of the orders of 12/3/26 pending the hearing and determination of the application 3. That the court be pleased to mark the notice of appeal dated 17/3/26 as withdrawn 4. The court do review, vary or set aside its judgment rendered on 12/3/26. 5. The court do reopen the pleadings in the matter and grant the applicant leave to amend pleadings 6. Costs of the application. 2. The application is based on the grounds annexed thereto and the supporting affidavit of Asunta Wangechi Wachira, sworn on 13/4/26. 3. She deposed that the subject of the entire suit is LR No NBI Block 115/1439 [suit land] and formerly Plot No FD/388, Karagita, East Africa. 4. That she provided all the evidence to her former lawyer, Messrs Swaka & Advocates, who represented her in the suit, and that she ordinarily expected him to structure her defence to encompass all the evidence, including witnesses. That the evidence was not filed among the documents she intended to rely on in the case. 5. That she has now instructed the law firm of Karoki & Co Advocates, hence the need to seek leave of court for the firm to be placed on record for the applicant. 6. She added that she met Harrison Waweru Kamengere in 2010 and, in 2013, purchased the suit land from his mother and aunt, who held it jointly. She paid the previous owners in cash, and the land was registered in the deceased's name. A clearance certificate was also issued in the deceased's name. 7. In 2015, she and her late husband decided to build a house on the property and, among others, hired Daniel Wachira Kanyi, her father and a construction expert, to oversee the development. Ephraim Kariithi Muchemi served as foreman. She annexed the statements of the duo, along with receipts for the purchase of building materials and labour. 8. In 2016, she and her late husband moved into the unfinished house and opened a mini-supermarket in Mihango, which they ran together. They also joined St Catherine ACK Church as members of the congregation. 9. Her husband was killed on 21/9/2016 by unknown people who fled the scene after fatally injuring him. Following Harrison's death, the local community, including the church, assisted with funeral arrangements. During the funeral service, she was recognised as the deceased's wife, as shown in the eulogy annexed. 10. After the burial, she continued finishing the house, where she now lives with her sister and her nieces. 11. She added that the property was jointly purchased and developed and therefore cannot form part of the deceased's estate under the doctrine of survivorship. Her financial contribution to the acquisition and development of the property further supports her assertion that the suit property is matrimonial property. 12. That it is critical that the evidence be brought to light before the court for it to consider and reach a just decision. That her case failed because the previous counsel failed to present all the evidence before the court, despite the evidence being in his possession, and that the mistake of counsel should not be visited on her. 13. That the court ought to set aside the judgment delivered on 12/3/26, allow her to amend her pleadings, and include the new evidence that was omitted. 14. The application is opposed by the replying affidavit of Antony Chege Wanjiru, who stated that the judgment was a regular judgment, decided on the merits, that the parties were heard, and that the application is unmeritorious and lacks merit. 15. Furthermore, a case belongs to a litigant, not to counsel. A litigant has a duty to pursue the prosecution of her case, and it was her duty to ensure that all material necessary to defend it was placed before the court. In any event, the court accorded the applicant all the time she needed to file her documents from October 2021. 16. The instant application is a knee-jerk reaction intended to have a second bite at the cherry and should be rejected. 17. In any event, the documents have always been in the applicant's custody; there is no evidence that the advocate failed to act or to present or call any of the intended witnesses or documents, and, further, the alleged documents have no probative value to the case. 18. He asserts that the transfer of the suit land from the applicant was illegal and fraudulent, achieved by using a forged death certificate and through intermeddling, and that none of the documents alleged to be missing would rebut these acts. 19. Parties have filed written submissions which I have read and considered. 20. The issues for determination are as follows; 1. Whether the firm of Karoki & Co Advocates should be allowed to come on record for the applicant in place of the law firm of Swaka & Co Advocates. 2. Whether the judgment delivered on 12/3/26 should be reviewed, varied and/or set aside 3. Whether the suit should be opened for filing of fresh pleadings including leave to the applicant to amend the plaint. 4. Costs of the application. **Whether the firm of Karoki & Co Advocates should be allowed to come on record for the applicant in place of the law firm of Swaka & Co Advocates**. 1. It is the applicant's plea that the law firm of Karoki & Co Advocates be allowed to come on record for her post-judgment, in place of her erstwhile counsel, Messrs Swaka & Co. 2. Order 9 Rule 9 Civil Procedure Rules provides; “9. Change to be effected by order of Court or consent of parties When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after Judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court— [Emphasis mine] (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 1. The above provision is couched in mandatory terms and obliges any party seeking to change advocates post-judgment to seek the court's leave to do so. 2. In the case of Stephen Mwangi Kimote Vs Murata Sacco Society [2018] eKLR that; “12. Article 50 (2)(b) of the Constitution protects the rights of an accused person to choose and be represented by an Advocate. Order 9 does not impede the right of a party to be represented by an Advocate of his choice. It only provides rules to impose orderliness in civil proceedings. Any change of Advocate should comply with the rules. Chaos would reign if parties can change Advocates at will without notifying the Court and the other parties …” 1. I have considered the application in respect of this prayer and am satisfied that the applicant has complied with the provisions aforesaid; hence the prayer is allowed as prayed. **Whether the judgment delivered on 12/3/26 should be reviewed, varied and/or set aside** 1. The applicant contends that she submitted all requisite documents to her former legal representative, who subsequently failed to present them at the hearing. She has itemised these documents in her affidavit, together with the witness statements of the individuals she intends to call in support of her case. The applicant maintains that her counsel's failure to produce these documents in court warrants the issuance of orders for review, variation, setting aside, and the reopening of the case for hearing. 2. The power of this Court to review its own judgments is discretionary but must be exercised strictly within the confines of the law. The underpinning legal provision for seeking review is found in Section 80 Civil Procedure Act which states that; “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.” 3. The above provision is further augmented by Order 45 rule 1 Civil Procedure Rules that; “(1) Any person considering himself aggrieved— 1. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or 2. 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.” 3. An Applicant seeking orders of review must demonstrate that; 4. 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 b. There is a mistake or error apparent on the face of the record or; c. There is sufficient reason; and d. The application for review must have been made without undue delay. 1. The nature of the error contemplated under Order 45 rule 1(b) of the Civil Procedure Rules is one that is apparent on the face of the record, not one that has to be fleshed out or searched for. The court in the case of Republic vs Dentists Board & another (Misc. Civil application 59 & 63 of 2019) (Consolidated) {2021} KEHC 298 (KLR) (Judicial Review) (16 November 2021) (Ruling) went into great depth to define an error apparent on the face of the record, stating that; “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 stares 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 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. In the present case, the applicant relies on her application on the basis of new and important documents that, although provided to her counsel, were not placed before the court at the hearing. 2. The litigation history of this matter is worth noting. The case was filed on 21/9/2021. The matter was thereafter mentioned several times to confirm compliance with Order 11 and readiness for the hearing of the suit. Mr Swaka acted for the 1st defendant applicant throughout the suit. On 18/12/2024, the court held as follows; “The court notes and agrees with the Plaintiff and the 2nd Defendant that the Advocate for the 1st Defendant has had more than sufficient time to comply with Order 11 of the Civil Procedure Rules. The court confirms that the Plaintiff and the 2nd Defendant have duly complied. This matter is confirmed and certified ready for hearing. The suit shall be heard on 25/3/25. The 1st Defendant, having failed to comply with pre-trial directions and/or file a defence, is denied the right to do so. She shall, however, be allowed to cross-examine witnesses.” 1. On 25/3/25, the Plaintiff's witness took the stand and was duly cross-examined by the 1st Defendant's counsel, after which the Plaintiff's case was closed. 2. The applicants filed an application dated 25/4/25, seeking leave of the court to file a defence and a list of documents out of time. By consent of the parties, the application was allowed. The court ordered the applicant to file and serve her pretrial bundle within 3 days, gave her liberty to recall the plaintiff's witness if need be, and set the next hearing for 18/6/25, at which the applicant and her witness testified and closed their case. 3. Having examined the record, the court is not satisfied that the documents alleged to have been given to the lawyers ought to be admitted as new and important documents for the following reasons. The documents were in the custody of the applicant and her lawyers throughout, and there is nothing to show that they were prevented from placing them before the court. The rule does not admit negligent or inadvertent grounds. In the absence of any correspondence between the applicant and her previous lawyers, there is no evidence that the documents were indeed given to the lawyer. The said lawyer has not sworn any affidavit in support of the applicant's averments. 4. The grounds presented by the applicant appear to be directed towards addressing deficiencies in her case; in other words, the applicant seeks an additional opportunity to confront the matter afresh. The applicant bore the responsibility to ensure that all relevant evidence was submitted to the court. She did testify and chose to call a witness, despite earlier non-compliance with the court's directives. Having selected her defence strategy, including the evidence and witnesses she chose to present, she cannot subsequently claim that her strategy was mistaken and seek to rectify this by re-litigating the matter. 5. The court is not satisfied that there are cogent grounds to review, vary or set aside the judgment. Accordingly, the ground is rejected. **Whether the suit should be opened for filing of fresh pleadings including leave to the applicant to amend the plaint.** 1. Having declined to review the judgment, I find that this prayer fails and is dismissed. 2. Regarding costs, the applicant's application has failed, and I see no reason to deny the Plaintiff costs in relation to the application. 3. In the end, the application is unmeritorious and is dismissed with costs to the Plaintiff/respondent. 4. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr Kahia Mwangi for the Plaintiff 2. Mr Karoki for the 1st Defendant 3. Mr Muriithi HB for Mr Kingori for the 2nd Defendant 4. N/A for the 3rd Defendant 5. C/A – Mr Amos