1. The parties herein were previously married, but they divorced on 6 th July, 2023. The Applicant filed an amended Originating Summons dated 9 th January, 2025 seeking division of the matrimonial property
2. The Court determined the matter via a Judgment delivered on 24 th September, 2025. The O.S was partially successful.
3. The matter is presently before Court for determination of two post-judgment applications filed by the Respondent.
4. The application dated 20 th February, 2026 seeks the following orders;
i. Spent;
ii. That the Honourable Court be pleased to review and clarify its judgment and final orders on the 25 th September, 2025 to the effect that the ordered equal division/distribution of all that property title no. Bokoli/Kituni/1572 (matrimonial home) shall be based on a valuation of the same as was on or before the 8 th August, 2018, being the confirmation date upon which the parties herein had already separated;
iii. That the costs of the application be provided for.
5. The second application seeks the following orders;
i. Spent;
ii. That the Honourable Court be pleased to review and/or set aside the restraining orders issued on 8 th January, 2025 in so far as they relate to the L.R No. Bokoli/Kituni/1576 and motor vehicles KDP 242M, KDM 930K, KBE 099Y, KAP 196B, KDK 459H and KDJ 206F;
iii. That the costs of the application be provided for.
6. Both applications are opposed by the Applicant, who filed two replying affidavits and a preliminary objection.
7. The Respondent argues that the orders are necessary to prevent a miscarriage of justice.
8. The Applicant, on the other hand, argues that the court is functus offiio and should not entertain the applications.
9. I have considered the two applications, the affidavits by the parties and the submissions.
10. The issues for determination are as follows;
i. Whether the court can review the judgment in the manner sought;
ii. Whether the interim orders are still subsisting.
11. In the Judgment of 24 th September, 2025 the Court issued the following orders:
i. That the following properties shall be shared equally between the parties: Parcel Title Number Bokoli/Kituni/1572, Motor Vehicles KAQ 154 N, KAL 043 P, KCL 261 H, KBP 354 J, and Savings in Co-operative Bank account No. 01103315597200.
ii. That Parcel Title Number E. Bukusu/N. Kanduyi/8401 shall be divided between the Applicant and the Respondent in the ratio 30:70.
iii. That the following properties belong to the Respondent exclusively: Motor Vehicle KDP 242 M, KDM 930 K, KDK 459 H, KDJ 206F, and Business named Eagle Health and Clinic Services.
iv. That Motor Vehicle KCB 117 U shall go to the Applicant.
v. That the Applicant’s claim for the following properties failed: Parcel Title number Bokoli/Kituni/1576 , Motor Vehicle KBE 099 Y, KAP 196B, KCV 278H, and Motor Cycle Registration Number KMFN833V.
vi. Each party to bear own costs.
12. The properties in bold are the ones that are the subject of the applications now before court.
13. The review application concerns the Parcel Title Number Bokoli/Kituni/1572. In an application for review, the applicant must meet the criteria outlined in Order 45 Rule 1;
(1) 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”
14. In this case, the applicant states that the property Parcel Title Number Bokoli/Kituni/1572 is presently not in the state it was in before their separation in 2018.
15. He has annexed pictures that he states evidence recent improvements that have increased the property’s market value. He has also annexed pleadings in respect of a children case in 2018. Do these annexures constitute new and important evidence that was not available with due diligence, or is there a sufficient reason to review the order?
16. Regarding the discovery of new and important matter or evidence, the Court of Appeal in Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), held as follows;
“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
17. This court in the judgment analyzed the evidence that had been presented and held as follows;
36. I have seen the said title deed. It shows that the property was registered in the name of the Respondent in July, 2018. However, in my view, this is not a conclusive prove that this parcel was acquired on July 2018. There is a great possibility that the process of acquiring the parcel began when the parties were still happily married, and that there were delays in processing the title deed. The Respondent did not attach a sale agreement for the property, which would have helped this Court to know when the process of acquiring the property began.
37. In addition, the Respondent did not provide evidence of his financial contribution to the purchase and development of the said property. The evidence of the sale agreement would have showed the purchase price for the parcel of land and eventually help this Court ascertain the portion of the purchase price that each party contributed.
38. Having established that the property constitutes matrimonial home, and that there is no direct documentary evidence to apportion each parties’ respective contribution, I find that this is a proper case where the property should be distributed equally between the parties, on a 50:50 basis .
18. In the application, I find that the Respondent invites the court to revisit the consideration settled in the judgment; he is seeking a second bite via the review process.
19. The Respondent had a fair opportunity to present his case; the photographs and children’s court pleadings were available for his production, but he did not produce them. This includes the agreement referenced by the court in its judgment, as well as the purported valuation. The issue of valuation cannot be introduced during a review process simply to seek a second chance at litigating the matter.
20. There exists no error on the face of the record, nor any new and important evidence that, with due diligence, could not be produced when the order was made, and no other sufficient reason has been provided to warrant such a review.
21. On the second application concerning the interim orders, the record shows that on 8 th January, 2025, this Court issued interim orders to protect the properties involved in the matrimonial property case. These orders were issued following consideration of the notice of motion application dated 11 th December, 2024, which was filed alongside the originating summons.
22. The interim orders were temporary and were only meant to be in effect until the hearing and determination of the main suit. In the final determination, these interim orders were not incorporated; such inclusion was not necessary. Consequently, with the determination of the suit, the interim orders automatically lapsed. Therefore, the filing of the application dated 23 rd February, 2026, was unnecessary.
23. The application dated 23 rd February, 2026 is struck out.
24. The application dated 20 th February, 2026 is dismissed.
25. The costs of the two applications are awarded to the Applicant (respondent in the two applications).
26. Orders accordingly.
DATED and SIGNED at NAIROBI on this 04TH day of AUGUST, 2026.
C. KENDAGOR
JUDGE
2. The Court determined the matter via a Judgment delivered on 24 th September, 2025. The O.S was partially successful.
3. The matter is presently before Court for determination of two post-judgment applications filed by the Respondent.
4. The application dated 20 th February, 2026 seeks the following orders;
i. Spent;
ii. That the Honourable Court be pleased to review and clarify its judgment and final orders on the 25 th September, 2025 to the effect that the ordered equal division/distribution of all that property title no. Bokoli/Kituni/1572 (matrimonial home) shall be based on a valuation of the same as was on or before the 8 th August, 2018, being the confirmation date upon which the parties herein had already separated;
iii. That the costs of the application be provided for.
5. The second application seeks the following orders;
i. Spent;
ii. That the Honourable Court be pleased to review and/or set aside the restraining orders issued on 8 th January, 2025 in so far as they relate to the L.R No. Bokoli/Kituni/1576 and motor vehicles KDP 242M, KDM 930K, KBE 099Y, KAP 196B, KDK 459H and KDJ 206F;
iii. That the costs of the application be provided for.
6. Both applications are opposed by the Applicant, who filed two replying affidavits and a preliminary objection.
7. The Respondent argues that the orders are necessary to prevent a miscarriage of justice.
8. The Applicant, on the other hand, argues that the court is functus offiio and should not entertain the applications.
9. I have considered the two applications, the affidavits by the parties and the submissions.
10. The issues for determination are as follows;
i. Whether the court can review the judgment in the manner sought;
ii. Whether the interim orders are still subsisting.
11. In the Judgment of 24 th September, 2025 the Court issued the following orders:
i. That the following properties shall be shared equally between the parties: Parcel Title Number Bokoli/Kituni/1572, Motor Vehicles KAQ 154 N, KAL 043 P, KCL 261 H, KBP 354 J, and Savings in Co-operative Bank account No. 01103315597200.
ii. That Parcel Title Number E. Bukusu/N. Kanduyi/8401 shall be divided between the Applicant and the Respondent in the ratio 30:70.
iii. That the following properties belong to the Respondent exclusively: Motor Vehicle KDP 242 M, KDM 930 K, KDK 459 H, KDJ 206F, and Business named Eagle Health and Clinic Services.
iv. That Motor Vehicle KCB 117 U shall go to the Applicant.
v. That the Applicant’s claim for the following properties failed: Parcel Title number Bokoli/Kituni/1576 , Motor Vehicle KBE 099 Y, KAP 196B, KCV 278H, and Motor Cycle Registration Number KMFN833V.
vi. Each party to bear own costs.
12. The properties in bold are the ones that are the subject of the applications now before court.
13. The review application concerns the Parcel Title Number Bokoli/Kituni/1572. In an application for review, the applicant must meet the criteria outlined in Order 45 Rule 1;
(1) 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”
14. In this case, the applicant states that the property Parcel Title Number Bokoli/Kituni/1572 is presently not in the state it was in before their separation in 2018.
15. He has annexed pictures that he states evidence recent improvements that have increased the property’s market value. He has also annexed pleadings in respect of a children case in 2018. Do these annexures constitute new and important evidence that was not available with due diligence, or is there a sufficient reason to review the order?
16. Regarding the discovery of new and important matter or evidence, the Court of Appeal in Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), held as follows;
“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
17. This court in the judgment analyzed the evidence that had been presented and held as follows;
36. I have seen the said title deed. It shows that the property was registered in the name of the Respondent in July, 2018. However, in my view, this is not a conclusive prove that this parcel was acquired on July 2018. There is a great possibility that the process of acquiring the parcel began when the parties were still happily married, and that there were delays in processing the title deed. The Respondent did not attach a sale agreement for the property, which would have helped this Court to know when the process of acquiring the property began.
37. In addition, the Respondent did not provide evidence of his financial contribution to the purchase and development of the said property. The evidence of the sale agreement would have showed the purchase price for the parcel of land and eventually help this Court ascertain the portion of the purchase price that each party contributed.
38. Having established that the property constitutes matrimonial home, and that there is no direct documentary evidence to apportion each parties’ respective contribution, I find that this is a proper case where the property should be distributed equally between the parties, on a 50:50 basis .
18. In the application, I find that the Respondent invites the court to revisit the consideration settled in the judgment; he is seeking a second bite via the review process.
19. The Respondent had a fair opportunity to present his case; the photographs and children’s court pleadings were available for his production, but he did not produce them. This includes the agreement referenced by the court in its judgment, as well as the purported valuation. The issue of valuation cannot be introduced during a review process simply to seek a second chance at litigating the matter.
20. There exists no error on the face of the record, nor any new and important evidence that, with due diligence, could not be produced when the order was made, and no other sufficient reason has been provided to warrant such a review.
21. On the second application concerning the interim orders, the record shows that on 8 th January, 2025, this Court issued interim orders to protect the properties involved in the matrimonial property case. These orders were issued following consideration of the notice of motion application dated 11 th December, 2024, which was filed alongside the originating summons.
22. The interim orders were temporary and were only meant to be in effect until the hearing and determination of the main suit. In the final determination, these interim orders were not incorporated; such inclusion was not necessary. Consequently, with the determination of the suit, the interim orders automatically lapsed. Therefore, the filing of the application dated 23 rd February, 2026, was unnecessary.
23. The application dated 23 rd February, 2026 is struck out.
24. The application dated 20 th February, 2026 is dismissed.
25. The costs of the two applications are awarded to the Applicant (respondent in the two applications).
26. Orders accordingly.
DATED and SIGNED at NAIROBI on this 04TH day of AUGUST, 2026.
C. KENDAGOR
JUDGE