1. Vide an application dated 18/09/2024, the Applicant herein is seeking orders inter alia that the ruling delivered on 23/04/2024 be reviewed and set aside and the appeal be heard on merit.
2. The application is based on grounds on the face of the application supported by the affidavit of the Applicant sworn on 18/09/2024 wherein he stated that Civil Suit No. 14 of 2016 was consolidated with ELC Case No. 92 of 2018, with ELC No. 92 of 2018 being the lead file. He stated that the matter proceeded ex parte in the lower court, resulting in a judgment in favour of the 1st respondent, Catherine Wawira John, in line with her claim in Civil Suit No. 14 of 2016. He averred that the 1st respondent attempted to execute the judgment, but he objected on the ground that Civil Suit No. 14 of 2016 had already been dismissed for want of prosecution at the time of consolidation, rendering the consolidation order in vain.
3. He averred that the lower court was unaware that Civil Suit No. 14 of 2016 had been dismissed, making the entire proceedings null and void. That consequently, the parties consented to set aside the ex-parte judgment and reinstate ELC Case No. 92 of 2018. He argued that this Honourable Court did not consider that aspect when delivering its ruling on 23/04/2024. He further argued that in light of the above, there is an error apparent on the face of the record, since there was no suit upon which the lower court entered judgement since Civil Suit No. 14 of 2016 was non-existent at the time of consolidation. He prayed that the ruling dated 23/04/2024 be reviewed and that the appeal be heard on its merits.
4. The 1st Respondent filed a replying affidavit dated 9/05/2025 wherein she stated that the Applicants application is bad in law and devoid of merit and ought to be dismissed with costs. She denied that Civil Suit No. 14 of 2016 was consolidated with ELC Case No. 92 of 2018, stating that Embu Civil Suit No. 14 of 2016 was consolidated with ELC Case No. 12 of 2016, after which both files were designated as ELC No. 92 of 2018. She further denied that Civil Suit No. 14 of 2016 had been dismissed for want of prosecution at the time of consolidation, noting that no evidence had been provided to support that allegation.
5. She stated that the regularity or otherwise of the order for consolidation of ELC Case No. 12 of 2016 and Embu Civil Suit No. 14 of 2016 is not the subject matter of the instant appeal and averred, that any challenge to the consolidation orders or to the judgment delivered on 25/01/2021 can only be made through an appeal against that judgment and not through the current interlocutory appeal. She stated that the ruling delivered by this Honourable Court was proper and sound, as the trial court acted in excess of its jurisdiction by setting aside the ex parte judgment after having earlier dismissed an application to set it aside.
6. She maintained that there is no mistake apparent on the face of the ruling delivered on 23/04/2024, and that the present application does not meet the threshold for review. She argued that there was unreasonable and unexplained delay of more than five months in bringing the application since the ruling was delivered on 23/04/2024 while the present application was brought on 18/09/2024. She stated that the application was an afterthought and amounts to abuse of the court process and urged that the application be dismissed with costs.
7. When the application came for directions, the parties agreed to have the application canvassed by written submissions. The Applicant filed his submissions dated 23/06/2024 through the firm of Njeru, Nyaga & Company Advocates. He submitted that ELC Case. 92 of 2018 and Civil Suit No. 14 of 2016 were consolidated and ELC No. 92 of 2018 made the lead file, but it later emerged that Civil Suit No. 14 of 2016 had already been dismissed for want of prosecution prior to consolidation, rendering the consolidation, subsequent proceedings, and the ex-parte judgment dated 25/01/2021 a nullity.
8. He argued that although the parties by consent vacated the ex-parte judgment and reinstated ELC Case No. 92 of 2018, this Court, in dismissing the appeal herein, revisited the expunged judgment without addressing the fact that there was no subsisting suit being Civil Suit No. 14 of 2016 capable of consolidation or of producing a valid judgment. Relying on the case of National Bank of Kenya v Ndung’u Njau Appeal No. 2111 of 1996, the Applicant expressed that this omission constituted an error apparent on the face of the record and urged the Court to correct the error through review and determine the appeal on its merits.
9. The 1st respondent filed her submissions dated 3/07/2025 through the firm of Kahiga, Mukami & Macharia Advocates. She contended that the Applicant was estopped from raising the consolidation issue at this stage since it was not a ground in the memorandum of appeal, and any challenge to the consolidation or the judgment dated 25/01/2021 should be made by way of a separate appeal. Relying on Singh t/a Trilok Construction v Sucham Investment Limited (2024) KECA 568 (KLR), the Respondent submitted that the alleged errors require a long drawn process of reasoning and are not errors apparent on the face of the record, thus failing the threshold for review. Lastly, the Respondent emphasized that mere dissatisfaction with the Court’s ruling does not constitute sufficient grounds for review.
10. The 2nd respondents filed their submissions dated 18/06/2025 through the office of the Hon. Attorney General. They submitted that the Applicant’s claim that the consolidation order was invalid due to the dismissal of Civil Suit No. 14 of 2016 is misplaced, as the ruling challenged concerned the merits of ELC Case No. 92 of 2018, which remained valid. They argued that the Applicant had failed to show prejudice and that mere dissatisfaction with a ruling does not justify review citing the case of Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR.
11. The issue for determination is whether the Applicant has satisfied the legal threshold for review of the ruling delivered on 23/04/2024 so as to warrant its setting aside and the hearing of the appeal on merit.
12. The power of this Court to review its decisions is given by section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. For an Applicant to succeed, it must be demonstrated that there exists discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge; or that there is a mistake or error apparent on the face of the record; or that there exists any other sufficient reason.
13. In this case and upon a careful re-examination of the record, this Court notes that ELC Case No. 92 of 2018 was formerly High Court Civil Suit No. 12 of 2016. The suit was initially filed in the High Court as Civil Suit No. 12 of 2016 by the Applicant against the 1st respondent before being transferred to the Environment and Land Court and re-designated as ELC Case No. 92 of 2018 on 14/6/2018. The Applicant was seeking the eviction of the 1st respondent from suit land parcel No. Ngandori/Kirigi/T. 100.
14. The record further shows that Civil Suit No. 14 of 2016 was filed by the 1st Respondent against the Applicant and one Daniel Gachoki Ireri where the 1st respondent was seeking to have the said Daniel Gachoki Ireri transfer the suit land to her since she had bought the land from him but he had instead transferred it to the Applicant. In the alternative, she prayed for a refund of the sum of Kshs. 924, 000/= which she has paid towards the purchase. This suit was dismissed for want of prosecution on 12/03/2018. This procedural history appears to have occasioned considerable confusion.
15. More significantly, there appears to be no evidence on record of any order consolidating Civil Suit No. 14 of 2016 with Civil Suit No. 12 of 2016 or ELC Case No. 92 of 2018. It would however appear, that the trial court in delivering the ex-parte judgment dated 25/01/2021, proceeded on the erroneous assumption that Civil Suit No. 12 of 2016 and Civil Suit No. 14 of 2016 had been consolidated to form ELC Case No. 92 of 2018 and allowed the 1st respondent’s suit being Civil Suit No. 14 of 2016 which was erroneous.
16. The Applicant had, through an application dated 29/01/2021, sought to set aside the ex-parte judgment on the ground that he had not been served with summons to enter appearance. After considering the parties’ respective positions, the court dismissed that application. Thereafter, the Applicant filed a second application dated 28/08/2021 seeking to set aside the same ex-parte judgment, this time bringing to the attention of the lower court that Civil Suit No. 14 of 2016 had already been dismissed for want of prosecution prior to the alleged consolidation and was therefore non-existent at the time the ex-parte judgment was entered. On the basis of this second application, and by consent of the parties, the trial court set aside the ex-parte judgment.
17. Following the consent order setting aside the judgment, the matter proceeded as though properly reinstated. However, on 02/03/2023, the trial court struck out the suit for non-compliance with pre-trial directions issued under Order 11 of the Civil Procedure Rules. It is this order striking out the suit that gave rise to the appeal which was dismissed by this Court in its ruling delivered on 23/04/2024. In dismissing the appeal, this Court held that once the trial court had dismissed the Applicant’s first application to set aside the interlocutory judgment, it became functus officio on that issue. However, upon reconsideration, this Court appreciates that Civil Suit No. 14 of 2016, upon which the ex-parte judgment was founded, was non-existent at the time the judgment was entered, having already been dismissed for want of prosecution. Consequently, the proceedings leading to the ex-parte judgment were also null and void.
18. In light of the foregoing, this Court is persuaded that there was no suit or valid proceedings upon which the judgment dated 25/01/2021 could stand, as the proceedings before the lower court were premised on Civil Suit No. 14 of 2016, which had already been dismissed for want of prosecution. The trial court was therefore not in error in setting aside the ex-parte judgment for the reasons stated.
19. Accordingly, the court finds that the prayer for review is merited. The ruling dated 23/4/2024 is hereby set aside. The appeal shall proceed to hearing on merits.
20. The court will not make any orders as to costs.
DATED and SIGNED at EMBU this 27TH day of January, 2025
HON. E.C CHERONO
ELC JUDGE
In the presence of;
1. Mr. Njeru Nyaga for the Applicant.
2. M/S Mukami for the Respondent.
3. M/S Diana C/A.
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