REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 166 OF 2009
IN THE MATTER OF: ARTICLES 22, 23, 40, 48 AND 50 OF THE CONSTITUTION OF KENYA, 2010.
-AND-
IN THE MATTER OF: THE VIOLATION AND INFRINGEMENT OF THE PETITIONER’S RIGHT TO FAIR HEARING.
-BETWEEN-
JANE NJOKI MWANGI …………………….. PETITIONER/APPLICANT
-VERSUS-
NAIROBI CITY COUNTY
(FORMERLY NAIROBI CITY COUNCIL ……..….……... RESPONDENT
RULING
1. This Ruling determines a Notice of Motion dated 10 th November 2025, filed under Certificate of Urgency and premised on Order 45 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A, 63 (e) and 80 of the Civil Procedure Act and all other enabling provisions of the law. It seeks the following prayers: -
(1) SPENT
(2) THAT this Honourable Court be pleased to review, vary and/or set aside the judgment delivered on the 31 st day of March 2011 and be pleased to grant leave to the Petitioner/Applicant to file and rely upon the updated valuation report of January 2010.
(3) THAT The Court be pleased to reconsider and reassess the compensation award accordingly based on the value of the suit property as at January 2010.
(4) THAT costs of this Application be provided for.
2. The Application is anchored on the grounds on its face thereof and supported by the sworn Affidavit of Jane Njoki Mwangi, the Applicant herein, dated evenly. She deposes that judgment was entered in her favour by Hon. Justice D. Musinga J . (as he then was) on 31 st March 2011, which is now over fifteen years ago, awarding her Kshs. 25,112,500/= which represents the pleaded value of the suit property and a refund of Council rates from 1996 to 2001 plus costs and interest.
3. The Petitioner avers that prior to the judgment, in January 2010, she commissioned a re-evaluation of the property which report showed that because Ngara was elevated to Central Business District (CBD) status, the property’s true value had appreciated significantly to Kshs. 97,000,000/= as demonstrated in her annexture “JNM-2”.
4. She depones that, although her previous legal counsel Mbugua, Atudo and Macharia Advocates obtained leave from the court to amend the petition to reflect the higher valuation, they negligently failed to file the updated valuation report. Consequently, that the court awarded the lower, outdated amount and that when the Petitioner raised this issue, her previous advocate, Mr. Macharia, brushed her concerns aside.
5. The Petitioner asserts that she did not sleep on her rights but spent over 14 years seeking a remedy through numerous channels. She avers that she approached several prominent firms, including Kefa Ombati & Co. Advocates who declined formal representation due to personal reasons, the case’s complexity and other intricacies surrounding the case; P.K. Muite SC Advocates who cited exigencies of duty and Khaminwa & Khaminwa Advocates who only provided a critical legal opinion of her former lawyers but declined to take up representation.
6. The Applicant also avers that she addressed formal complaints and letters to multiple authorities, including the defunct Kenya Anti-Corruption Commission, the Ethics and Anti-Corruption Commission (EACC), the Advocates Complaints Commission, the Office of the Attorney General, the former Assistant Town Clerk, former Chief Justice Willy Mutunga and current Chief Justice Martha Koome and that none of these efforts resulted in a resolution.
7. It is deposed that the firm of Ikua and Nyambane Advocates LLP recently agreed to take up her case to pursue a formal review. It is reiterated that she was aggrieved by the fact that the updated valuation report was not considered at the time the Court rendered itself on the dispute because the Court was not privy to it.
8. She urges this Court to review, vary and/or set aside the judgment delivered on 31 st March 2011 and asserts that no prejudice will be occasioned on the Respondents if the orders sought are granted. She also requests that she be granted leave to formally file and rely upon the January 2010 valuation report and that the court reconsiders and re-assess the compensation award to match the actual Kshs. 97,000,000 updated value of the property at the material time.
9. The Applicant argues that leaving the original judgment unchanged perpetuates a severe violation of her constitutional right to fair administrative justice and a fair hearing under Articles 22, 23, 40, 48, and 50 of the Constitution, and asserts that the Respondent will suffer no prejudice if the review is granted.
10. There are no responses filed in respect of this Application. The same was canvassed by way of written submission. I note that only the Applicant has filed her written submissions.
Submissions
11. The Petitioner’s submissions are dated 18 th May 2026. Counsel for the Petitioner/Applicant outlines three issues for determination namely:
i. Whether the Applicant has satisfied the legal threshold for the review of the judgment delivered on the 31st day of March 2011, within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010, on account of discovery of new and important evidence and/or sufficient reason;
ii. Whether this Honourable Court should exercise its discretionary jurisdiction to review the judgment and admit the updated valuation report dated January 2010 for purposes of re-assessment of compensation, in the interests of substantive justice and in furtherance of the Petitioner/Applicant’s constitutional right to a fair hearing and access to justice; and
iii. Which party should bear the costs of this application ?
12. On the first issue, it is submitted that under Order 45 Rule 1 of the Civil procedure Rules, a review is permissible upon the discovery of a new and important matter or for sufficient reason. The decision by the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, is cited for the court’s jurisdiction on review. The Petitioner argues through counsel that the January 2010 valuation report qualifies as crucial material evidence that was entirely absent from the court’s consideration. Counsel further cites the case of Wangechi Kimita and another versus Mutahi Wakibiru (1982-88) 1 KAR 977 in support of her argument.
13. Counsel for the Petitioner argues that the mistakes or blunders of an advocate should not be visited upon an innocent litigant to lock them out of the seat of justice. Counsel places reliance on established jurisprudence Belinda Murai v Amoi Wainaina (1978) and Philip v Augustine Kibede (1982-88 ) KLR 103 .
14. It is submitted that the effect of the omission in the present case is not minor or procedural and that the financial variance between the awarded amount being Kshs. 25,112,500/= and the actual value being Kshs. 97,000,000/= is massive and impacts the very heart of the dispute. It is submitted that the failure to provide the updated valuation report constitutes discovery of material evidence that was not considered and is sufficient reason within the meaning of Order 45 Rule 1.
15. On the second issue, it is submitted that while review powers are discretionary, judicial discretion must be steered by fairness as held by the Court of Appeal in Mbogo v Shah (1968) EA 93 . It is urged that denying a review would uphold an incorrect, outdated valuation and violate the Petitioner’s property rights under Ar ticle 40.
16. Counsel also invokes Article 159(2)(d) of the Constitution , which demands that courts administer justice without undue regard to procedural technicalities alongside Article 50(1) which he argues, guarantees the right to have all material evidence properly evaluated before proprietary rights are determined. It is submitted that the exclusion of a duly commissioned valuation report, which directly bears on quantum, undermines the integrity of the adjudicative process.
17. Counsel for the petitioner urges this Court to invoke its inherent jurisdiction to ensure that justice is not only done but is seen to be done, by reopening the issue of quantum strictly for the limited purpose of considering the updated valuation report dated January 2010.
18. On the third issue, Counsel asserts that pursuant to Section 27 of the Civil Procedure Act and Halsbury’s Laws of England , the general rule is that costs should be awarded to the successful party. The Petitioner prays to be granted costs on a full-indemnity basis.
Analysis and Determination
19. Having considered the application as argued in the written submissions and there being no response by the respondent, I find the issue for my determination to be whether the Petitioner has proven sufficient grounds for a review of the judgment rendered in 2011, which will have the effect of setting aside of the judgment already rendered in order to admit the January 2010 valuation report and re-evaluate the compensation.
20. The law governing review is found under Section 80 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010 . The said provisions stipulate as follows: -
80. Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) 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 .
21. Under Order 45 of the Civil Procedure Rules 2010:
(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 reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay.
22. The requirements that warrant a court to review its judgment are aptly stated by the Court of Appeal Kithoi v Kioko (1982) KLR 177, page 181 , thus:-
“…. the Civil Procedure Rules Order XLIV demands inter alia, that an application for review must be based in the discovery of new and important evidence which was not within the applicant’s 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 on the face of the record or for any other sufficient reason. The application for review must strictly prove the grounds for review, except for review on the ground of mistake or error apparent on the record, falling which the application will not be granted.”
23. Outside of Kenya, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 also expressed itself on the parameters of review as follows:
“The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule.”
24. The above cited decisions restrict review to the following parameters:
(a) There must be discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) There must be some mistake or error apparent on the face of the record, or
(c) Any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.
25. The Applicant’s case is that there is an updated valuation report in respect of the suit property for which the Court entered judgment in her favour and made an award based on an old valuation report. She asserts that the omission to produce the updated commissioned valuation report was occasioned by her former legal counsel Mbugua, Atudo and Macharia Advocates who despite being granted leave to file the updated valuation report, failed to do so. The question is whether this evidence which the petitioner wishes the court to allow her to adduce after judgment was delivered 15 years ago now, is a newly discovered material evidence which was not within the court’s purview.
26. I have considered what constitutes a new and important matter under the first parameter for review. Mativo J (as he then was) in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) held thus:
“…..For material to qualify to be new and important evidence or matter, it must be of such a nature that it could not have been discovered had the applicant exercised due diligence. It must be such evidence or material that was not available to the applicant or the court. As stated above, the judgment in question was annexed to the Replying affidavit. The proceedings were part of the documents presented to the court. Differently stated, the material in question does not qualify to be new in that it was not available to the applicant or the court.”
27. In the present case, the Applicant contends that she commissioned a valuation of the suit property following the elevation of Ngara to CBD status and found that the property’s value had appreciated from the initial approximate value of 25 Million to 97 Million Shillings. This was in 2010 before the hearing of her case in 2011, after which, judgment was entered in her favour based on the evidence that she tendered in court.
28. From the facts of this case, it is clear that the issue of the updated valuation report could not constitute new evidence that was not considered at the trial. The fact that the Petitioner/Applicant herself was the one who commissioned the preparation of the said valuation report and knew of its content means that she was aware of the said report and ought to have presented it before the court for the benefit of her case during the hearing.
29. The statutory provisions on review require that, neither the court nor the party seeking review should have had knowledge of the alleged new material evidence. In this case, the Petitioner knew of the updated valuation report but left the same in the hands of her legal counsel whom she alleges failed to file it in court. Consequently, the court pronounced itself, and rightfully so, based on the material that was before it.
30. The English Case of Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745 is a Court of Appeal judgment, which established the criteria for the Court to accept fresh evidence in a case on which a judgment has already been delivered.The Court of Appeal, consisting of Denning LJ , Hodson LJ and Parker LJ, allowed Ladd's appeal to be heard, but refused to admit the testimony of Mrs Marshall. Lord Denning laid down the definitive rule for the admissibility of new evidence in the following terms:
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
31. Later, in the case of Hamilton v Mohamed Al Fayed (unreported 21 December 2000) citing the Ladd v Marshall (supra) case, Lord Phillips MR stated as follows:
"11. We consider that under the new, as under the old procedure, special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, ….. we do not consider that we are placed in the straightjacket of previous authority when considering whether such special grounds have been demonstrated. The question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the court to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should receive the right results".
32. Lord Phillips further stated:
"These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective. In particular, it will not normally be in the interests of justice to re-open a concluded trial in order to introduce fresh evidence unless that evidence will probably influence the result. "
33. In the South African case of Mkwanazi v Van Der Merwe and Another (38/69) [1969] ZASCA 17 (27 November 1969), the Supreme Court of Appeal of South Africa held that once a case is closed, it will only be reopened if the evidence is material and the failure to produce it earlier is satisfactorily explained. In that case, the appellant had sought to have the case reopened before judgment was reserved for delivery, unlike in the present case where the case was heard, judgment reserved and delivered and the petitioner returned to court 14 years later seeking for reopening of the case for adduction of fresh evidence.
34. The Court stated as follows regarding considerations for reopening a case which is concluded:
“The considerations which usually fall to be weighed in an application by a plaintiff under Rule 28 (11), include the following: (i) The reason why the evidence was not led timeously. (ii) The degree of materiality of the evidence.
(iii) The possibility that it may have been shaped to relieve the pinch of the shoe.
(iv) The balance of prejudice, i.e., the prejudice to the plaintiff if the application is refused, and the pre- judice to the defendant if it is granted. This is a wide field. It may include such factors as the amount or importance of the issue at stake; the fact that the defendant's witnesses may already have dispersed; the question whether - the refusal might result in judgment of absolution, in which event whether it might not be as broad as it is long to let the plaintiff lead the evidence rather than to put the parties to the expense of proceedings de novo.
(v) The stage which the particular litigation has reached. Where judgment has been reserved after all evidence has been led on both sides and, just before judgment is delivered, the plaintiff asks for leave to lead further evidence, it may well be that he will have a harder row to hoe, be- cause of factors such as the increased possibility of prejudice to the defendant, the greater need for finality, and the undesirability of throwing the whole case into the melting pot again, and perhaps also the convenience of the court, which is usually under some pressure in its roster of cases. On the other hand, where a plaintiff closes his case and, before his opponents have ta-ken any steps, asks for leave to addsome further evidence, the case is then still in medias res as it were.
(vi) The healing balm of an appropriate order as to costs.(vii) The general need for finality in judicial proceedings. This factor is usually cited against the applicant for leave to lead further evidence. However, depending on the circumstances, finality might be sooner achieved by allowing such evidence and getting on with the case, than by granting absolution and opening the indeterminate way to litigation de novo in all its tedious amplitude.
(viii) The appropriateness, or otherwise, in all the circumstances, of visiting the remissness of the attorney upon the head of his client.”
35. In Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR) (7 March 2025) (Ruling) the Court of Appeal stated as follows on an application for adduction of new evidence and the principles espoused therein are relevant to this petition where the applicant seeks reopening of a determined case for purposes of introducing of fresh evidence of an upgraded value of the landed property, subject matter of the petition as determined.
“15. However, adducing additional evidence is not a matter of right but an exercise of the Court’s discretion. This Court in Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) held that additional evidence will be introduced on appeal at the discretion of the court, “for sufficient reason. “In the same decision, this Court went on to further hold that:
“…before the Court can permit additional evidence to be adduced under Rule 29 (now Rule 31), it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing; two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible. It is agreed that these are only general principles and certainly not the only ones.”
16. On the application of Rule 31 (1) (b) and (c) Chesoni, Ag. JA in Mzee Wanje & 93 Others V A.K Saikwa (1982-88) 1KAR 462 held that:
“This Rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the Rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”
17.On the same vein, the Supreme Court of Kenya in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 others (supra) set out the relevant guidelines an appellate court should consider before granting orders for admission of new evidence in the following terms:
a.the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.the evidence must be credible in the sense that it is capable of belief;
f.the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h.where the additional evidence discloses a strong prima facie case of willful deception of the Court;
i.the Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful;
j.a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
k.the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
18.This Court in Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR stated as follows:
“Following the guidelines as given by the Supreme Court, it is our duty to consider and determine if the instant application fulfils the principles as laid out in the case above. Of significance is whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this Court and if given, it would influence or impact upon the result of the verdict, and whether it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of trial by the applicant.”
36. In Paan v Kariuki & 16 others (Environment & Land Case 80 of 2019) [2024] KEELC 5337 (KLR) (11 July 2024) (Ruling), L. Komingoi J observed that:
“11.It is common practice that courts have discretion to reopen cases but while the principle of a fair trial is a Constitutional right under Article 50 of the Constitution , this discretion must be exercised judiciously and in a manner that upholds the integrity of the judicial process.
12.Courts have held that for a case to reopened, the applicant must show that there has been new evidence which could not be obtained earlier and that the evidence is crucial to the case’s determination. It is also imperative that reopening would not be prejudicial to any party; that reopening is not intended to fill evidential gaps; and the application has not been made inordinately late see Susan Wavinya Mutavi v Isaac Njoroge & another [2020] eKLR as held by Eboso J. The rule of thumb is that the court must be satisfied that re-opening the case is necessary to ensure that justice is done.”
37. The learned Judge held that a case should not be reopened if the application is made inordinately late or if the information was accessible and could have been obtained earlier through reasonable inquiry.
38. Further, the above referenced case of Susan Wavinya Mutavi v Isaac Njoroge & Another [supra] established that reopening of a case is not permitted to fill evidential gaps or when the delay is unexplained.
39. In Samuel Kiti Lewa v Housing Finance Company Limited & Another [2015] e KLR, Mary Kasango J (as she then was )emphasized that while it has discretion to reopen a case, it must not do so if it causes "embarrassment or prejudice" to the other party.
40. The Court of Appeal in Gachuki & Another v Njenga & 2 Others (supra) reiterated that additional evidence must not be utilized for removing lacunae and filling gaps in evidence.
41. Order 45 Rule 1 POF THE Civil Procedure Rules provides that a prayer seeking for review of a court’s decision may be made for any other reason but without unreasonable delay. In the Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [supra], the learned Judge stated:
“20.The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regar,d re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such prayer for re-opening of the case will be defeated by inordinate and unexplained delay.
42. The Applicant herein had counsel throughout the trial and pretrial. Even assuming that she inadvertently failed to produce the now updated report, which shows the value of the land to be 97 million as opposed to the value in the judgment, the question is, could she have failed to notice the difference in the figures immediately the judgment was rendered?
43. The applicant claims that mistake of counsel ought not to be visited upon her as an innocent litigant. I have considered the time taken by the Petitioner/Applicant since the judgment was rendered and since she allegedly discovered that her legal counsel failed her in this regard.
44. The applicant has come to court fourteen (14) years after judgment. That cannot be reasonable period because, decrees are executable within twelve years and although the petitioner has not disclosed to this court whether she has enforced the judgment rendered by the court based on the evidence she adduced, which non-disclosure is also material because, even assuming that the petitioner has been paid the decretal sum as p
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 166 OF 2009
IN THE MATTER OF: ARTICLES 22, 23, 40, 48 AND 50 OF THE CONSTITUTION OF KENYA, 2010.
-AND-
IN THE MATTER OF: THE VIOLATION AND INFRINGEMENT OF THE PETITIONER’S RIGHT TO FAIR HEARING.
-BETWEEN-
JANE NJOKI MWANGI …………………….. PETITIONER/APPLICANT
-VERSUS-
NAIROBI CITY COUNTY
(FORMERLY NAIROBI CITY COUNCIL ……..….……... RESPONDENT
RULING
1. This Ruling determines a Notice of Motion dated 10 th November 2025, filed under Certificate of Urgency and premised on Order 45 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A, 63 (e) and 80 of the Civil Procedure Act and all other enabling provisions of the law. It seeks the following prayers: -
(1) SPENT
(2) THAT this Honourable Court be pleased to review, vary and/or set aside the judgment delivered on the 31 st day of March 2011 and be pleased to grant leave to the Petitioner/Applicant to file and rely upon the updated valuation report of January 2010.
(3) THAT The Court be pleased to reconsider and reassess the compensation award accordingly based on the value of the suit property as at January 2010.
(4) THAT costs of this Application be provided for.
2. The Application is anchored on the grounds on its face thereof and supported by the sworn Affidavit of Jane Njoki Mwangi, the Applicant herein, dated evenly. She deposes that judgment was entered in her favour by Hon. Justice D. Musinga J . (as he then was) on 31 st March 2011, which is now over fifteen years ago, awarding her Kshs. 25,112,500/= which represents the pleaded value of the suit property and a refund of Council rates from 1996 to 2001 plus costs and interest.
3. The Petitioner avers that prior to the judgment, in January 2010, she commissioned a re-evaluation of the property which report showed that because Ngara was elevated to Central Business District (CBD) status, the property’s true value had appreciated significantly to Kshs. 97,000,000/= as demonstrated in her annexture “JNM-2”.
4. She depones that, although her previous legal counsel Mbugua, Atudo and Macharia Advocates obtained leave from the court to amend the petition to reflect the higher valuation, they negligently failed to file the updated valuation report. Consequently, that the court awarded the lower, outdated amount and that when the Petitioner raised this issue, her previous advocate, Mr. Macharia, brushed her concerns aside.
5. The Petitioner asserts that she did not sleep on her rights but spent over 14 years seeking a remedy through numerous channels. She avers that she approached several prominent firms, including Kefa Ombati & Co. Advocates who declined formal representation due to personal reasons, the case’s complexity and other intricacies surrounding the case; P.K. Muite SC Advocates who cited exigencies of duty and Khaminwa & Khaminwa Advocates who only provided a critical legal opinion of her former lawyers but declined to take up representation.
6. The Applicant also avers that she addressed formal complaints and letters to multiple authorities, including the defunct Kenya Anti-Corruption Commission, the Ethics and Anti-Corruption Commission (EACC), the Advocates Complaints Commission, the Office of the Attorney General, the former Assistant Town Clerk, former Chief Justice Willy Mutunga and current Chief Justice Martha Koome and that none of these efforts resulted in a resolution.
7. It is deposed that the firm of Ikua and Nyambane Advocates LLP recently agreed to take up her case to pursue a formal review. It is reiterated that she was aggrieved by the fact that the updated valuation report was not considered at the time the Court rendered itself on the dispute because the Court was not privy to it.
8. She urges this Court to review, vary and/or set aside the judgment delivered on 31 st March 2011 and asserts that no prejudice will be occasioned on the Respondents if the orders sought are granted. She also requests that she be granted leave to formally file and rely upon the January 2010 valuation report and that the court reconsiders and re-assess the compensation award to match the actual Kshs. 97,000,000 updated value of the property at the material time.
9. The Applicant argues that leaving the original judgment unchanged perpetuates a severe violation of her constitutional right to fair administrative justice and a fair hearing under Articles 22, 23, 40, 48, and 50 of the Constitution, and asserts that the Respondent will suffer no prejudice if the review is granted.
10. There are no responses filed in respect of this Application. The same was canvassed by way of written submission. I note that only the Applicant has filed her written submissions.
Submissions
11. The Petitioner’s submissions are dated 18 th May 2026. Counsel for the Petitioner/Applicant outlines three issues for determination namely:
i. Whether the Applicant has satisfied the legal threshold for the review of the judgment delivered on the 31st day of March 2011, within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010, on account of discovery of new and important evidence and/or sufficient reason;
ii. Whether this Honourable Court should exercise its discretionary jurisdiction to review the judgment and admit the updated valuation report dated January 2010 for purposes of re-assessment of compensation, in the interests of substantive justice and in furtherance of the Petitioner/Applicant’s constitutional right to a fair hearing and access to justice; and
iii. Which party should bear the costs of this application ?
12. On the first issue, it is submitted that under Order 45 Rule 1 of the Civil procedure Rules, a review is permissible upon the discovery of a new and important matter or for sufficient reason. The decision by the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, is cited for the court’s jurisdiction on review. The Petitioner argues through counsel that the January 2010 valuation report qualifies as crucial material evidence that was entirely absent from the court’s consideration. Counsel further cites the case of Wangechi Kimita and another versus Mutahi Wakibiru (1982-88) 1 KAR 977 in support of her argument.
13. Counsel for the Petitioner argues that the mistakes or blunders of an advocate should not be visited upon an innocent litigant to lock them out of the seat of justice. Counsel places reliance on established jurisprudence Belinda Murai v Amoi Wainaina (1978) and Philip v Augustine Kibede (1982-88 ) KLR 103 .
14. It is submitted that the effect of the omission in the present case is not minor or procedural and that the financial variance between the awarded amount being Kshs. 25,112,500/= and the actual value being Kshs. 97,000,000/= is massive and impacts the very heart of the dispute. It is submitted that the failure to provide the updated valuation report constitutes discovery of material evidence that was not considered and is sufficient reason within the meaning of Order 45 Rule 1.
15. On the second issue, it is submitted that while review powers are discretionary, judicial discretion must be steered by fairness as held by the Court of Appeal in Mbogo v Shah (1968) EA 93 . It is urged that denying a review would uphold an incorrect, outdated valuation and violate the Petitioner’s property rights under Ar ticle 40.
16. Counsel also invokes Article 159(2)(d) of the Constitution , which demands that courts administer justice without undue regard to procedural technicalities alongside Article 50(1) which he argues, guarantees the right to have all material evidence properly evaluated before proprietary rights are determined. It is submitted that the exclusion of a duly commissioned valuation report, which directly bears on quantum, undermines the integrity of the adjudicative process.
17. Counsel for the petitioner urges this Court to invoke its inherent jurisdiction to ensure that justice is not only done but is seen to be done, by reopening the issue of quantum strictly for the limited purpose of considering the updated valuation report dated January 2010.
18. On the third issue, Counsel asserts that pursuant to Section 27 of the Civil Procedure Act and Halsbury’s Laws of England , the general rule is that costs should be awarded to the successful party. The Petitioner prays to be granted costs on a full-indemnity basis.
Analysis and Determination
19. Having considered the application as argued in the written submissions and there being no response by the respondent, I find the issue for my determination to be whether the Petitioner has proven sufficient grounds for a review of the judgment rendered in 2011, which will have the effect of setting aside of the judgment already rendered in order to admit the January 2010 valuation report and re-evaluate the compensation.
20. The law governing review is found under Section 80 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010 . The said provisions stipulate as follows: -
80. Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) 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 .
21. Under Order 45 of the Civil Procedure Rules 2010:
(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 reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay.
22. The requirements that warrant a court to review its judgment are aptly stated by the Court of Appeal Kithoi v Kioko (1982) KLR 177, page 181 , thus:-
“…. the Civil Procedure Rules Order XLIV demands inter alia, that an application for review must be based in the discovery of new and important evidence which was not within the applicant’s 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 on the face of the record or for any other sufficient reason. The application for review must strictly prove the grounds for review, except for review on the ground of mistake or error apparent on the record, falling which the application will not be granted.”
23. Outside of Kenya, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 also expressed itself on the parameters of review as follows:
“The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule.”
24. The above cited decisions restrict review to the following parameters:
(a) There must be discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) There must be some mistake or error apparent on the face of the record, or
(c) Any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.
25. The Applicant’s case is that there is an updated valuation report in respect of the suit property for which the Court entered judgment in her favour and made an award based on an old valuation report. She asserts that the omission to produce the updated commissioned valuation report was occasioned by her former legal counsel Mbugua, Atudo and Macharia Advocates who despite being granted leave to file the updated valuation report, failed to do so. The question is whether this evidence which the petitioner wishes the court to allow her to adduce after judgment was delivered 15 years ago now, is a newly discovered material evidence which was not within the court’s purview.
26. I have considered what constitutes a new and important matter under the first parameter for review. Mativo J (as he then was) in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) held thus:
“…..For material to qualify to be new and important evidence or matter, it must be of such a nature that it could not have been discovered had the applicant exercised due diligence. It must be such evidence or material that was not available to the applicant or the court. As stated above, the judgment in question was annexed to the Replying affidavit. The proceedings were part of the documents presented to the court. Differently stated, the material in question does not qualify to be new in that it was not available to the applicant or the court.”
27. In the present case, the Applicant contends that she commissioned a valuation of the suit property following the elevation of Ngara to CBD status and found that the property’s value had appreciated from the initial approximate value of 25 Million to 97 Million Shillings. This was in 2010 before the hearing of her case in 2011, after which, judgment was entered in her favour based on the evidence that she tendered in court.
28. From the facts of this case, it is clear that the issue of the updated valuation report could not constitute new evidence that was not considered at the trial. The fact that the Petitioner/Applicant herself was the one who commissioned the preparation of the said valuation report and knew of its content means that she was aware of the said report and ought to have presented it before the court for the benefit of her case during the hearing.
29. The statutory provisions on review require that, neither the court nor the party seeking review should have had knowledge of the alleged new material evidence. In this case, the Petitioner knew of the updated valuation report but left the same in the hands of her legal counsel whom she alleges failed to file it in court. Consequently, the court pronounced itself, and rightfully so, based on the material that was before it.
30. The English Case of Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745 is a Court of Appeal judgment, which established the criteria for the Court to accept fresh evidence in a case on which a judgment has already been delivered.The Court of Appeal, consisting of Denning LJ , Hodson LJ and Parker LJ, allowed Ladd's appeal to be heard, but refused to admit the testimony of Mrs Marshall. Lord Denning laid down the definitive rule for the admissibility of new evidence in the following terms:
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
31. Later, in the case of Hamilton v Mohamed Al Fayed (unreported 21 December 2000) citing the Ladd v Marshall (supra) case, Lord Phillips MR stated as follows:
"11. We consider that under the new, as under the old procedure, special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, ….. we do not consider that we are placed in the straightjacket of previous authority when considering whether such special grounds have been demonstrated. The question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the court to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should receive the right results".
32. Lord Phillips further stated:
"These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective. In particular, it will not normally be in the interests of justice to re-open a concluded trial in order to introduce fresh evidence unless that evidence will probably influence the result. "
33. In the South African case of Mkwanazi v Van Der Merwe and Another (38/69) [1969] ZASCA 17 (27 November 1969), the Supreme Court of Appeal of South Africa held that once a case is closed, it will only be reopened if the evidence is material and the failure to produce it earlier is satisfactorily explained. In that case, the appellant had sought to have the case reopened before judgment was reserved for delivery, unlike in the present case where the case was heard, judgment reserved and delivered and the petitioner returned to court 14 years later seeking for reopening of the case for adduction of fresh evidence.
34. The Court stated as follows regarding considerations for reopening a case which is concluded:
“The considerations which usually fall to be weighed in an application by a plaintiff under Rule 28 (11), include the following: (i) The reason why the evidence was not led timeously. (ii) The degree of materiality of the evidence.
(iii) The possibility that it may have been shaped to relieve the pinch of the shoe.
(iv) The balance of prejudice, i.e., the prejudice to the plaintiff if the application is refused, and the pre- judice to the defendant if it is granted. This is a wide field. It may include such factors as the amount or importance of the issue at stake; the fact that the defendant's witnesses may already have dispersed; the question whether - the refusal might result in judgment of absolution, in which event whether it might not be as broad as it is long to let the plaintiff lead the evidence rather than to put the parties to the expense of proceedings de novo.
(v) The stage which the particular litigation has reached. Where judgment has been reserved after all evidence has been led on both sides and, just before judgment is delivered, the plaintiff asks for leave to lead further evidence, it may well be that he will have a harder row to hoe, be- cause of factors such as the increased possibility of prejudice to the defendant, the greater need for finality, and the undesirability of throwing the whole case into the melting pot again, and perhaps also the convenience of the court, which is usually under some pressure in its roster of cases. On the other hand, where a plaintiff closes his case and, before his opponents have ta-ken any steps, asks for leave to addsome further evidence, the case is then still in medias res as it were.
(vi) The healing balm of an appropriate order as to costs.(vii) The general need for finality in judicial proceedings. This factor is usually cited against the applicant for leave to lead further evidence. However, depending on the circumstances, finality might be sooner achieved by allowing such evidence and getting on with the case, than by granting absolution and opening the indeterminate way to litigation de novo in all its tedious amplitude.
(viii) The appropriateness, or otherwise, in all the circumstances, of visiting the remissness of the attorney upon the head of his client.”
35. In Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR) (7 March 2025) (Ruling) the Court of Appeal stated as follows on an application for adduction of new evidence and the principles espoused therein are relevant to this petition where the applicant seeks reopening of a determined case for purposes of introducing of fresh evidence of an upgraded value of the landed property, subject matter of the petition as determined.
“15. However, adducing additional evidence is not a matter of right but an exercise of the Court’s discretion. This Court in Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) held that additional evidence will be introduced on appeal at the discretion of the court, “for sufficient reason. “In the same decision, this Court went on to further hold that:
“…before the Court can permit additional evidence to be adduced under Rule 29 (now Rule 31), it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing; two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible. It is agreed that these are only general principles and certainly not the only ones.”
16. On the application of Rule 31 (1) (b) and (c) Chesoni, Ag. JA in Mzee Wanje & 93 Others V A.K Saikwa (1982-88) 1KAR 462 held that:
“This Rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the Rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”
17.On the same vein, the Supreme Court of Kenya in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 others (supra) set out the relevant guidelines an appellate court should consider before granting orders for admission of new evidence in the following terms:
a.the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b.it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;
c.it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d.where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e.the evidence must be credible in the sense that it is capable of belief;
f.the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g.whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h.where the additional evidence discloses a strong prima facie case of willful deception of the Court;
i.the Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful;
j.a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;
k.the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
18.This Court in Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR stated as follows:
“Following the guidelines as given by the Supreme Court, it is our duty to consider and determine if the instant application fulfils the principles as laid out in the case above. Of significance is whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this Court and if given, it would influence or impact upon the result of the verdict, and whether it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of trial by the applicant.”
36. In Paan v Kariuki & 16 others (Environment & Land Case 80 of 2019) [2024] KEELC 5337 (KLR) (11 July 2024) (Ruling), L. Komingoi J observed that:
“11.It is common practice that courts have discretion to reopen cases but while the principle of a fair trial is a Constitutional right under Article 50 of the Constitution , this discretion must be exercised judiciously and in a manner that upholds the integrity of the judicial process.
12.Courts have held that for a case to reopened, the applicant must show that there has been new evidence which could not be obtained earlier and that the evidence is crucial to the case’s determination. It is also imperative that reopening would not be prejudicial to any party; that reopening is not intended to fill evidential gaps; and the application has not been made inordinately late see Susan Wavinya Mutavi v Isaac Njoroge & another [2020] eKLR as held by Eboso J. The rule of thumb is that the court must be satisfied that re-opening the case is necessary to ensure that justice is done.”
37. The learned Judge held that a case should not be reopened if the application is made inordinately late or if the information was accessible and could have been obtained earlier through reasonable inquiry.
38. Further, the above referenced case of Susan Wavinya Mutavi v Isaac Njoroge & Another [supra] established that reopening of a case is not permitted to fill evidential gaps or when the delay is unexplained.
39. In Samuel Kiti Lewa v Housing Finance Company Limited & Another [2015] e KLR, Mary Kasango J (as she then was )emphasized that while it has discretion to reopen a case, it must not do so if it causes "embarrassment or prejudice" to the other party.
40. The Court of Appeal in Gachuki & Another v Njenga & 2 Others (supra) reiterated that additional evidence must not be utilized for removing lacunae and filling gaps in evidence.
41. Order 45 Rule 1 POF THE Civil Procedure Rules provides that a prayer seeking for review of a court’s decision may be made for any other reason but without unreasonable delay. In the Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [supra], the learned Judge stated:
“20.The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regar,d re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such prayer for re-opening of the case will be defeated by inordinate and unexplained delay.
42. The Applicant herein had counsel throughout the trial and pretrial. Even assuming that she inadvertently failed to produce the now updated report, which shows the value of the land to be 97 million as opposed to the value in the judgment, the question is, could she have failed to notice the difference in the figures immediately the judgment was rendered?
43. The applicant claims that mistake of counsel ought not to be visited upon her as an innocent litigant. I have considered the time taken by the Petitioner/Applicant since the judgment was rendered and since she allegedly discovered that her legal counsel failed her in this regard.
44. The applicant has come to court fourteen (14) years after judgment. That cannot be reasonable period because, decrees are executable within twelve years and although the petitioner has not disclosed to this court whether she has enforced the judgment rendered by the court based on the evidence she adduced, which non-disclosure is also material because, even assuming that the petitioner has been paid the decretal sum as p
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