1. Introduction
1. The Defendants/Applicants moved this Court by way of a Notice of Motion dated 18th July 2025 seeking principally that this Court reviews and sets aside the orders issued on 14th July 2025 by the Deputy Registrar withdrawing the Defendants’ application dated 11th May 2022, and that the said application be reinstated for hearing and determination.
2. The application is premised on the grounds set out on its face and is supported by the affidavit of Perpetual Njoki Githongo sworn on even date.
3. The Respondents opposed the application through the replying affidavit of Miriam Wanjiru Gatumu sworn on 2nd March 2026.
4. The Court has also considered the written submissions filed by counsel for the respective parties.
The Applicants’ Case
5. The Applicants’ case is that the application dated 11th May 2022, which sought to set aside the judgment delivered in this matter, remained pending until 14th July 2025 when their then advocates, M/s Njiru Mbogo Advocates, withdrew the same before the Deputy Registrar.
6. The Applicants contend that the said withdrawal was undertaken without their knowledge, consent or authority.
7. It is their position that they had fully instructed their advocate to prosecute the application and had paid the requisite legal fees.
8. They further contend that the withdrawal of the application was prejudicial to them as it effectively terminated their challenge to a judgment which they allege was procured through fraudulent documents and irregular court processes.
9. The Applicants therefore urge this Court to set aside the order of withdrawal and reinstate the application dated 11th May 2022 for hearing and determination.
The Respondents’ Case
10. The Respondents oppose the application and contend that the Applicants are improperly seeking to reopen a dispute that was conclusively determined more than ten (10) years ago.
11. The Respondents argue that an advocate properly on record possesses the authority to conduct litigation on behalf of a client including making procedural decisions such as withdrawing an application.
12. They further contend that if the Applicants believe that their advocate acted without instructions, their remedy lies against the advocate and not in reopening concluded proceedings.
13. The Respondents also aver that the suit land has since been subdivided and transferred to several third parties who purchased the parcels in good faith and have since settled thereon.
14. It is therefore their position that reopening the matter would occasion grave prejudice not only to the Respondents but also to innocent third parties who are not parties to this suit.
Issues for Determination
15. Having carefully considered the pleadings, affidavits and submissions placed before the Court, the following issues arise for determination:
a) Whether the Applicants have satisfied the legal threshold for review of the orders issued on 14th July 2025.
b) Whether the alleged unauthorised withdrawal of the application by counsel constitutes sufficient ground for setting aside the said order.
c) Whether reinstating the application dated 11th May 2022 would offend the principle of finality of litigation.
16. The jurisdiction of this Court to review its orders is provided for under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
17. A party seeking review must demonstrate the existence of:
a) discovery of new and important evidence which, after exercise of due diligence, was not within the applicant’s knowledge;b) an error apparent on the face of the record; orc) any other sufficient reason.
18. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau held that review is not an avenue for a party to re-open litigation but is limited to correcting apparent errors or addressing matters falling within the strict confines of Order 45.
19. The Applicants contend that their former advocates withdrew the application dated 11th May 2022 without instructions.
20. It is settled law that an advocate on record has the authority to conduct proceedings on behalf of a client and that such authority includes making procedural decisions necessary for the conduct of litigation.
21. However, courts have also recognised that where the conduct of counsel clearly amounts to fraud, collusion or a deliberate act contrary to express instructions, the court may intervene in order to prevent injustice.
22. In Philip Chemwolo & Another v Augustine Kubede, the Court observed that courts exist to determine disputes on their merits and should not impose undue hardship on litigants merely because of the mistakes of counsel.
23. Similarly, in M & E Consulting Engineers Ltd v Lake Basin Development Authority, the Court emphasized that the discretion to set aside procedural actions may be exercised where it is necessary to prevent a miscarriage of justice.
24. Nevertheless, the burden rests upon the party alleging lack of authority to demonstrate that the advocate indeed acted outside the scope of instructions.
25. In the present case, the Applicants have merely asserted that the withdrawal was done without their consent. No independent material has been placed before this Court to demonstrate that the advocate acted fraudulently or in collusion with the opposing party.
26. The Applicants have also not demonstrated that they have initiated any complaint before the relevant professional disciplinary bodies regarding the alleged misconduct of the said advocate.
27. In the absence of such material, this Court is unable to conclude that the withdrawal was irregular or unlawful.
28. This Court must also take into account the broader history of this dispute.
29. The record shows that the suit was heard and determined on its merits by Justice B. N. Olao, who ordered the cancellation of the Applicants’ registration and directed that the land revert to the original owner.
30. The Applicants did not prefer an appeal against that judgment.
31. The principle that litigation must come to an end is fundamental to the administration of justice. The Supreme Court affirmed this position in Raila Odinga & Others v IEBC & Others, emphasizing the importance of finality in judicial proceedings.
32. The Respondents have further demonstrated that the original parcel of land known as GATURI/GITHIMU/413 has since been subdivided and transferred to third parties who are not parties to this suit.
33. Those parties have acquired proprietary interests which this Court cannot lightly disturb without affording them an opportunity to be heard.
Legal Analysis and Determination
34. Having carefully evaluated all the material placed before this Court, the Court arrives at the following conclusions:
a) The Applicants have not demonstrated any of the statutory grounds required for review under Order 45 of the Civil Procedure Rules.
b) The allegation that the application was withdrawn without instructions has not been substantiated to the required standard.
c) Reinstating the application dated 11th May 2022 would effectively reopen litigation that has long been concluded and would occasion prejudice to third parties who have since acquired interests in the suit land.
Final Orders
35. In the result, the Notice of Motion dated 18th July 2025 is devoid of merit and the same is hereby dismissed.
36. The Applicants shall bear the costs of the application.
DATED, SIGNED AND DELIVERED AT EMBU THIS 12TH DAY OF MARCH, 2026.
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E.C.CHERONOELC JUDGE
In the presence of;
1. Mr. Muriithi for the Defendant/Applicant.
2. 1st Respondent-absent.
3. 2nd Respondent-absent.
4. 3rd Respondent-present
5. Diana Kemboi C/A.
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