REGISTERED TRUSTEES KISII SPORTS CLUB VS REGISTERED TRUSTEES LUTHERAN CHURCH OF KENYA

BRIEF FACTS
1. The Plaintiff/Applicant filed the instant application dated 21st July, 2023 seeking the following orders:
a. Spent.
b. THAT leave of the court be granted for the firm of M/S E.M. ORINA & COMPANY LLP to come on record to act for the Applicant herein in place of the firm of M/S GJM MASESE & CO. ADVOCATES
c. Spent.
d. THAT this honourable court be pleased to review and or set aside the judgment and decree of this court dated 16th February, 2023 and all consequential orders and the matter be fixed for hearing de novo.
e. THAT the costs of this application be provided for.
2. The Application was based on grounds set out and supported by the Affidavit of DR. JOHN KUMENDA a trustee of the Applicant herein. It is sworn on 21st July, 2023. He stated that the court delivered it judgment on 16th February, 2023, allowing the Respondent to evict the Applicant from the suit property KISII MUNICIPALITY BLOCK 11/132. He further stated that he had since discovered the suit land had been unlawfully acquired by the Respondent without having a Part Development Plan (PDP) drawn and approved by the Kisii Municipal Council. He added that it was only after the PDP was approved together with the allotment letter that the Director of Surveys prepares a survey plan.
3. He stated that the Respondent registered the land without the survey and deed plan thus making the registration irregular. He also stated that according to the PDP presented as PEX 13(a) and (b), there was no additional plots within the Applicant’s land. He stated that the Respondent’s witness admitted that they obtained the piece of land within the Applicant’s property but that the Land Registrar confirmed that he was unable to identify the exact location on the ground.
4. He went on to state that if the said judgment is left to stand, then the court will have sanctioned an illegality thus review is necessary to ensure that justice is served.
5. He stated that unless the orders are granted, the Applicant will be prejudiced and suffer loss as the Respondent will have unduly benefitted from an illegality and/or fraudulent registration.  
Response
6. The Respondent’s trustee one SAMSON MAOTO filed his Replying Affidavit. It was sworn on 6th September, 2023. He averred that they had no objection in having the firm of M/S ORINA & COMPANY ADVOCATES coming on record for the Applicant. He further averred that the Respondent had been issued with an allotment letter on 2nd October, 1975 by the then Gusii County Council as per plan No. 31002/XIV/62D.
7. He further averred that a certificate of lease in respect to the suit property was issued in the Respondent’s name for a term of 99 years on 4th September, 2003. He added that the same delineated their land parcel with other parcels.
8. He averred that by an allotment letter dated 26th April, 2000, the Commissioner of Lands offered the Respondent the alternative site and offer for acceptance was made but not approved.
9. He went on to aver that on 26th May, 1994, the Commissioner of Land wrote to the District Officer wherein he indicated that he was unable to process the PDP No. KSI/39/93/19 since the record indicated that the Respondent already had a plot allocated to it.
10. He averred that both parties acquired their land from the Gusii Council but that the Applicant never raised any issue that the Respondent had occupied part of their land.
11. He also averred that the Applicant never pleaded fraud in acquiring of the lease and that the issues raised were already dealt with in the ruling delivered on 5th March, 2009 by Musinga J (as then was).
12. He averred that the county surveyor produced a report that delineated the two parcels. He added that the Applicant cannot shift the burden of prove to the Respondent to produce the PDP, surveyor plan and the deed plan.
13. In conclusion, he urged the court to dismiss the application with costs as the same was not merited.
14. The Applicant in response filed a Further Affidavit sworn on 13th October, 2023. He stated that allocation of land in the township areas were done by the District Land Board under the District Commissioner.
15. He also stated that the District Commissioner and the Board by extension could approve PDPs from the District Physical Planning Office after sufficient notice. He added that the said process was not followed in allocation of the suit property to the Respondent.
16. He stated that the Respondent admitted that it was allocated an alternative parcel from the suit land and thus had to vacate it and relinquish their interest on the suit parcel first.
17. He stated that the ownership of the suit property by the Respondent was extinguished by virtue of the 2nd allocation as advised by the Commissioner of Lands and their acceptance cemented that the same was irregularly done.
18. He also stated that the Respondent admitted that the PDP was drawn and forwarded but since he failed to attach the same, it meant that the allocation was done without an approved PDP thus irregular.
19. He stated that the PDP dated 21st July, 2023 was not captured anywhere near the Applicant’s land KISII MUNICIPALITY BLOCK 11/207 thus the registration was irregular.
Submissions
20. Counsel for the Applicant filed his submissions dated 26th October, 2023 where he identified one issue for determination, whether this honourable court should review and or set aside the judgment and decree dated 16th February, 2023 and the matter fixed for hearing de novo.
21. He relied on Order 45 Rule 1(b) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. He also cited the case in Tokesi Mambili & Others V Simon Litsanga [2004] eKLR and Benjoh Amalgamated Ltd & Another V Kenya Commercial Bank Limited [2014] eKLR
22. It was his submission that vide the letter dated 6th April, 2023, from the Kisii County Department of Lands, Physical Planning and Urban Development, it emerged that there was no PDP and records for the allocation of the suit property to the Respondent. He submits that the purported ownership of the parcel of land by the Respondent was unlawful and fraudulent.
23. He went on to submit that the Applicant has been in occupation of the suit land since 1906 after being duly allocated. He relied on the case of Nelson Kazungu Chai & 9 Others V Pwani University [2014] eKLR.
24. He submits that in the instant case, the Respondent obtained its registration without a PDP thus failed to have a survey plan hence the registration was irregular. 
25. He also submits that from the PDP produced by the Plaintiff as Exhibit 13 (a) and (b) dated 9th October, 1998, there were no additional parcels within the Applicant’s land. He added that the government approved the extension of the Applicant’s lease which encompassed the disputed land. 
26. He relied on the case of Ali Mohammed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the Estate of Mohamed Haji Dagane) V Hakar Abshir & 3 Others [2021] eKLR and submits that the Respondent did not follow the laid procedure in disposition of government land.
27. Counsel further submits that the Respondent procured its registration of the suit land without regard to the mandatory conditions set out under Section 42 of the Physical Planning Act 1996 (now repealed). He relied on Section 109 of the Evidence Act and submits that the allocation of the suit property was done without an approved PDP making it irregular.
28. He relied on the case of Munyu Maina V Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] eKLR and Dina Management Limited V County Government of Mombasa & 5 Others (Petition No. 8 (E010) OF 2021).
29. He submits that if the judgment dated 16th February, 2023 is left to stand, the court will be sanctioning an illegality thus review of the same is necessary to ensure justice is served.
30. In conclusion, he submits that the Applicant has provided new and compelling evidence that was not in its possession at the time of hearing of the case.
31. Counsel for the Respondent on the other hand filed his submissions dated 14th November, 2023 where he submits that they were given the allotment letter sometime in 2nd October, 1975 before the Applicant had made its application for allotment.
32. He submits that the Applicant had not challenged the manner in which the title was issued. He added that the Applicant was aware that the Respondent had been registered as the lease holder of the suit property for a term of 99 years.
33. It was his submission that the Applicant made a proposal to the Commissioner of Lands for an alternative site which never came to be and the Respondent was confirmed as the owner of the suit land.
34. He further submits that the Applicant only shifted the burden of proof to the Respondent which is unprocedural when judgment was already delivered. He added that the allegation of fraud by the Applicant needed strict proof which was not done hence rendering the application a mere academic exercise.
35. He submits that the Applicant had ample time to tender substantive evidence before delivery of judgment and thus, he argues that there is no discovery of new evidence as alleged to warrant the court to interfere with the judgment.  
Analysis and Determination
36. This court has carefully considered the application, the responses and submission by both parties together with the law. The main issue for determination is whether the application is merited. Attendant it is who to bear the costs of the application.
1. The law on review and setting aside of judgments and decrees or rulings and orders is now settled. The jurisdiction of this court on review of orders is found in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 as amended in 2020.
2. Section 80 of the Act provides as follows:
“any person who considers 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 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.
37. Thus, Order 45 Rule 1 (1) of the Civil Procedure Rules provides as follows:
“1. Application for review of decree or order
(1)   Any person considering himself aggrieved-
(a)  by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b)   by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
38. Thus, the three conditions have to be met either jointly or singularly. Above all the application has to be made without undue delay. In summary then the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by them at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record and of not that one, then for any other sufficient reason.
39. Is there apparent on the record? None exists or was even alleged. Is there a mistake on the face of record? None has been alleged, and indeed there is none existing.
40. What the applicants are arguing is that there is discovery of a new and important matter that was not within their knowledge at the hearing stage. The Applicant claims that there was no approved PDP to warrant the Respondent to be issued with Kisii Block II/132. They state that there was a letter obtained from the Ministry of Lands about want of a Part Development Plan (PDP) over the property. It was their case that they could not obtain letter from the Ministry of Lands confirming that there was no approved PDP on or before the case was heard and determined.
41. The Respondent on the other hand contends that the Applicant had sufficient time to produce the said document before the court could render its judgment.  
3. This Court has to determine whether there indeed is discovery of material which was not within the knowledge of the Applicant at the hearing, or if there is sufficient cause for the review. In Wachira Karani v Bildad Wachira (2016) eKLR the Court explained that sufficient cause (or reason) is a question of fact. The Court of Appeal decision of Muyodi -v- Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 and the persuasive decisions of re Estate of Japhet Avugwi Luseno (Deceased) [2020] eKLR and Francis Njoroge Vs Stephen Maina Kamore (2018) eKLR emphasize the need to proof the four conditions before an order of judicial review issues.
4. In Avugwi Luseno cause brought out clearly the idea that applications for review are not meant to substitute the remedy of appeal. I agree absolutely. Where an issue is one that ought to have been taken upon on appeal but the party failed to do so, that would not amount to a sufficient cause or an error on the face of record. It should be borne in mind that the remedy of review should be of strict application and limitation to the grounds provided for.
5. About the issue whether there was discovery of new and important matter or evidence which after the exercise of due diligence was or was not within the applicant’s knowledge. This Court is guided by the holding in the case of Republic –v- Advocates Disciplinary Tribunal Exparte Apollo Mboya (2019) eKLR where the court held that:
“......for material to qualify to be new and important evidence or matter, it must be of such a nature that 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.”
42. In the Court of Appeal case in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, the court held as follows:
“…The respondent’s case is now about an error on the face of the record.  The learned Judge should have seen straightaway that the respondent had changed its case from one of review based on discovery of new and material evidence to one of an error on the part of the court apparent on the face of the record.  He should have seen that the application as presented could not succeed and he should not have allowed the respondent to shift the goal post midway without amending the application thereby denying the appellant opportunity to respond.  An application for review must be specific on the ground on which it is brought.”
43. I have keenly perused the court record and it is not in dispute that the letter from the Ministry of Lands confirming that Kisii Block II/132 did not have an approved PDP is dated 6th April, 2023. It is not in dispute that judgment was delivered on 16th February, 2023 before the said letter was issued. 
44. Whereas the letter stating so was availed after the judgment, it does not mean that the fact or evidence of absence of a PDP was not available to the applicants. Further, it is not in dispute that the applicants knew that the law requires that for a allotments of such a nature as the instant one there is need for the letter of allotment to be accompanied by a valid PDP. That explains why they applied for the Ministry to confirm its existence or otherwise. Further, they knew that once a party did not prove that the letter of allotment was backed with that important evidence the claim through it was flawed. By the time the suit proceeded to hearing it was clear to the Applicants that the PDP was not existent. Thus, when judgment was rendered as it was, and in light to the evidence tendered and in absence of the PDP, the applicant should have moved the Court of Appeal for a remedy addressing that alleged shortcoming. They did not do so hence squandered their chances on appeal. The issue of the Respondent to produced a PDP to back its claims was a matter of evidence, and when the learned judge pronounced himself on the subject as he did, then of the applicant was dissatisfied with the judgment he ought to have appealed the judgment. The learned judge exercised his mind fully on the subject and the decision he made cannot be one for review based on the facts as given in the instant application.
45. It is therefore this court’s view that while the letter dated 6th April, 2023 is new evidence its absence ought to have been taken up on appeal.
46. Regarding representation, it is a fact that the Respondent does not dispute that the firm of M/S E.M ORINA & COMPANY LLP comes on record in place of M/S GJM MASESE & CO. ADVOCATES for the Applicant. I thus find that the Applicant’s advocates ought to be given opportunity to be represented by the law firm of their choice, which is M/S. E.M. Orina & Company Advocates. They can proceed to file their Notice of Change of Advocates and serve. 
47. The upshot of the foregoing is that the instant application not merited on the opposed limb and prayers. It is dismissed.
48. Each party to bear its own costs.
49. It is so ordered.
Ruling dated, signed and delivered virtually via the Teams Platform this 14th day of July, 2025
Hon. Dr. iur Nyagaka,
Judge
At 3:46 PM in the presence of,
Linus Okok Advocate for the Defendant/Applicant
Anyona Advocate for the Plaintiff/Respondent