RULING
1. The plaintiff filed the notice of motion dated 18.11.2025 under order 45 of the Civil Procedure Rules, seeking: -
(2) joinder of the 1st, 2nd and 3rd interested parties.
(3) setting aside of the ruling of 16.10.2025 ex debito justiciae and have the application dated 10.7.2025 be heard de novo; or
(4) in the alternative, variation of the orders of 16.10.2025 to allow the application of 10.7.2025 save as to the three acres subject to the appeal in Nairobi Civil Appeal No. E035 of 2025; Eunice Wanjiru Gathithi (The Legal Representative of the Estate of the Late Fredrick Gathithi Kabue) v Cannon Insurance Kenya Limited.
(5) the court be pleased to mediate the settlement of the Sale Agreement dated 9.10.2015.
2. The application is premised on the grounds set out in the body of the application and the supporting affidavit sworn by the plaintiff on 18.11.2025. The applicant also filed written submissions dated 30.1.2026.
3. The gist of the application is that the court erred by failing to consider that the total suit property comprises 4.812 HA which is equivalent to 11.890711 acres and that the only issue in contention in the Court of Appeal is 3 acres and not 8.89 acres.
4. The applicant stated that the 8.89 acres comprises one acre sold to the respondent and one and a half of an acre sold to the 1st, 2nd and 3rd interested parties and the balance of 6.39 acres is to devolve to the estate for distribution and payment of liabilities.
5. The applicant relied on several authorities on the principles for consideration in determining an application for review. Standard Chartered Financial Services Limited & 2 others v Manchester Outfitters (Suiting Division) Limited (Now known as King Woolen Mills Limited & 2 others [2016] eKLR, Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Ritz Enterprises v Equity Bank Limited [2025] KEHC 4047 (KLR).
6. The applicant also relied on Lydia Kabugo Nderi (suing for and on behalf of the late Mary Muthoni Nderi) v Nyeri Plot Owners Limited & Kenya Hotels Limited [2021] KECA 917 (KLR) on the concept of estoppel of record.
Response
7. The defendant/ respondent opposed the application through a replying affidavit sworn by its Head of Legal, Betty Kanyagia on 16.1.2026 and written submissions dated 4.2.2026.
8. The respondent’s main contention is that review must show that an error is apparent on the face of the record. It asserted that both the rulings of the Environment and Land Court (ELC) in ELC No. 065 of 2024 Eunice Wanjiru Gathithi (the legal representative of the estate of the late Fredrick Gathithi Kabue v Cannon Assurance Kenya Limited and the High Court in this matter agree that all issues be determined by the Court of Appeal.
9. The respondent further argued that the court lacks jurisdiction to mediate a settlement of the sale agreement dated 9.10.2015 and to join third parties to the suit after the decree or when the case has already been determined by the court.
10. The respondent asserted that the application is an abuse of the court process and therefore urged the court to dismiss it with costs.
11. The respondent relied on Regina v Ramzan Ahmed Jamal [1955] All ER Volume XXII to submit that the applicant’s misconduct is an intent to defraud and Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR) on principles for joinder of interested parties.
Analysis and Determination
12. The principal issue is whether the applicant has met the threshold for setting aside or variation of the ruling and orders of 16.10.2025.
13. The court has discretion to grant a review of its order or decree pursuant to Section 80 of the Civil Procedure Act.
14. The discretion ought to be exercised reasonably based on principles and not capriciously.
15. The discretion is exercised on defined grounds for review, set out under Order 45 of the Civil Procedure Rules, namely, discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
16. The application is grounded on an error in that the court failed to consider that the total suit property comprises 4.812 HA which is equivalent to 11.890711 acres and that the only issue in contention in the Court of Appeal is 3 acres and not 8.89 acres.
17. On the other hand, the respondent submitted that through the appeal pending before the Court of Appeal, the applicant challenged the validity of the settlement agreement. It further indicated that it intends to challenge the settlement agreement for being an illegality, null and void for it was concealed by its board of directors.
18. A review ought to be on an error apparent on the face on the record, not one that is drawn from a long process of reasoning.
19. “An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible.” Nyamogo & Nyamogo Advocates v Kogo [2001] EA 173
20. In my considered view, the application is not grounded on an error on the face of the record because the error cited cannot be such error.
21. The applicant submitted that there is a sufficient reason for review and relied on this court’s decision in Ritz Enterprises v Equity Bank Limited.
22. However, each case depends on its own facts. In the circumstances of this case, in the ruling of 16.10.2025, the court found that the appeal is pending on inter alia, substantive issues on the settlement agreement. This was a conscientious decision by the court and was not attended to by any cognitive confusion or oblivion.
23. Thus, I do not find any merit in the applicant’s submission that there is a sufficient reason for review.
24. Hence, I find that the applicant has not met the threshold for review.
25. Therefore, the prayers seeking the setting aside and variation of the ruling and orders of 16.10.2025 are not merited.
Mediation of the settlement agreement of 9.10.2015
26. Prayer 5 seeks the court to mediate the settlement of the Sale Agreement dated 9.10.2015. As long as it is within their power and could lawfully do so, parties in their own volition and agreement may mediate a resolution on a matter even where an appeal is pending. But, this court has no such powers.
27. I am aware and it has been claimed here that, abuse of the court process may arise where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR
28. Without making any specific finding, I opine that prayer 5 is best canvassed in the appeal before the Court of Appeal that concerns substantive issues on the settlement agreement.
Joinder
29. Prayer 2 seeking the joinder of the 1st, 2nd and 3rd intended interested parties is similar to prayer 4 in the earlier application of 10.7.2025 seeking joinder of the 1st interested party.
30. To my mind, since the substantive issue of the validity of the settlement agreement is pending before the Court of Appeal, the consideration of the prayer would offend the doctrine of sub judice.
Disposal
31. In conclusion,
(1) Prayers 3, 4 and 5 are dismissed for want of merit.
(2) Prayer 2 for joinder of the 1st, 2nd and 3rd intended interested parties is stayed on the basis of sub judice.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
--------------
F. Gikonyo M
Judge
In the presence of: -
Otieno for Oyatsi for defendant
Nadio for Gichuhi for Plaintiff
CA –Ivan/Aggrey
1. The plaintiff filed the notice of motion dated 18.11.2025 under order 45 of the Civil Procedure Rules, seeking: -
(2) joinder of the 1st, 2nd and 3rd interested parties.
(3) setting aside of the ruling of 16.10.2025 ex debito justiciae and have the application dated 10.7.2025 be heard de novo; or
(4) in the alternative, variation of the orders of 16.10.2025 to allow the application of 10.7.2025 save as to the three acres subject to the appeal in Nairobi Civil Appeal No. E035 of 2025; Eunice Wanjiru Gathithi (The Legal Representative of the Estate of the Late Fredrick Gathithi Kabue) v Cannon Insurance Kenya Limited.
(5) the court be pleased to mediate the settlement of the Sale Agreement dated 9.10.2015.
2. The application is premised on the grounds set out in the body of the application and the supporting affidavit sworn by the plaintiff on 18.11.2025. The applicant also filed written submissions dated 30.1.2026.
3. The gist of the application is that the court erred by failing to consider that the total suit property comprises 4.812 HA which is equivalent to 11.890711 acres and that the only issue in contention in the Court of Appeal is 3 acres and not 8.89 acres.
4. The applicant stated that the 8.89 acres comprises one acre sold to the respondent and one and a half of an acre sold to the 1st, 2nd and 3rd interested parties and the balance of 6.39 acres is to devolve to the estate for distribution and payment of liabilities.
5. The applicant relied on several authorities on the principles for consideration in determining an application for review. Standard Chartered Financial Services Limited & 2 others v Manchester Outfitters (Suiting Division) Limited (Now known as King Woolen Mills Limited & 2 others [2016] eKLR, Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Ritz Enterprises v Equity Bank Limited [2025] KEHC 4047 (KLR).
6. The applicant also relied on Lydia Kabugo Nderi (suing for and on behalf of the late Mary Muthoni Nderi) v Nyeri Plot Owners Limited & Kenya Hotels Limited [2021] KECA 917 (KLR) on the concept of estoppel of record.
Response
7. The defendant/ respondent opposed the application through a replying affidavit sworn by its Head of Legal, Betty Kanyagia on 16.1.2026 and written submissions dated 4.2.2026.
8. The respondent’s main contention is that review must show that an error is apparent on the face of the record. It asserted that both the rulings of the Environment and Land Court (ELC) in ELC No. 065 of 2024 Eunice Wanjiru Gathithi (the legal representative of the estate of the late Fredrick Gathithi Kabue v Cannon Assurance Kenya Limited and the High Court in this matter agree that all issues be determined by the Court of Appeal.
9. The respondent further argued that the court lacks jurisdiction to mediate a settlement of the sale agreement dated 9.10.2015 and to join third parties to the suit after the decree or when the case has already been determined by the court.
10. The respondent asserted that the application is an abuse of the court process and therefore urged the court to dismiss it with costs.
11. The respondent relied on Regina v Ramzan Ahmed Jamal [1955] All ER Volume XXII to submit that the applicant’s misconduct is an intent to defraud and Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR) on principles for joinder of interested parties.
Analysis and Determination
12. The principal issue is whether the applicant has met the threshold for setting aside or variation of the ruling and orders of 16.10.2025.
13. The court has discretion to grant a review of its order or decree pursuant to Section 80 of the Civil Procedure Act.
14. The discretion ought to be exercised reasonably based on principles and not capriciously.
15. The discretion is exercised on defined grounds for review, set out under Order 45 of the Civil Procedure Rules, namely, discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
16. The application is grounded on an error in that the court failed to consider that the total suit property comprises 4.812 HA which is equivalent to 11.890711 acres and that the only issue in contention in the Court of Appeal is 3 acres and not 8.89 acres.
17. On the other hand, the respondent submitted that through the appeal pending before the Court of Appeal, the applicant challenged the validity of the settlement agreement. It further indicated that it intends to challenge the settlement agreement for being an illegality, null and void for it was concealed by its board of directors.
18. A review ought to be on an error apparent on the face on the record, not one that is drawn from a long process of reasoning.
19. “An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible.” Nyamogo & Nyamogo Advocates v Kogo [2001] EA 173
20. In my considered view, the application is not grounded on an error on the face of the record because the error cited cannot be such error.
21. The applicant submitted that there is a sufficient reason for review and relied on this court’s decision in Ritz Enterprises v Equity Bank Limited.
22. However, each case depends on its own facts. In the circumstances of this case, in the ruling of 16.10.2025, the court found that the appeal is pending on inter alia, substantive issues on the settlement agreement. This was a conscientious decision by the court and was not attended to by any cognitive confusion or oblivion.
23. Thus, I do not find any merit in the applicant’s submission that there is a sufficient reason for review.
24. Hence, I find that the applicant has not met the threshold for review.
25. Therefore, the prayers seeking the setting aside and variation of the ruling and orders of 16.10.2025 are not merited.
Mediation of the settlement agreement of 9.10.2015
26. Prayer 5 seeks the court to mediate the settlement of the Sale Agreement dated 9.10.2015. As long as it is within their power and could lawfully do so, parties in their own volition and agreement may mediate a resolution on a matter even where an appeal is pending. But, this court has no such powers.
27. I am aware and it has been claimed here that, abuse of the court process may arise where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR
28. Without making any specific finding, I opine that prayer 5 is best canvassed in the appeal before the Court of Appeal that concerns substantive issues on the settlement agreement.
Joinder
29. Prayer 2 seeking the joinder of the 1st, 2nd and 3rd intended interested parties is similar to prayer 4 in the earlier application of 10.7.2025 seeking joinder of the 1st interested party.
30. To my mind, since the substantive issue of the validity of the settlement agreement is pending before the Court of Appeal, the consideration of the prayer would offend the doctrine of sub judice.
Disposal
31. In conclusion,
(1) Prayers 3, 4 and 5 are dismissed for want of merit.
(2) Prayer 2 for joinder of the 1st, 2nd and 3rd intended interested parties is stayed on the basis of sub judice.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
--------------
F. Gikonyo M
Judge
In the presence of: -
Otieno for Oyatsi for defendant
Nadio for Gichuhi for Plaintiff
CA –Ivan/Aggrey