REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYERI
ELC CASE NO. E013 OF 2023
TERESA WANJIRU WANG’OMBE (Suing as the Administatrix of the Estate of MICHEAL WANG’OMBE GITHINJI) ……………PLAINTIFF
-VERSUS-
SAMUEL KARIUKI KAMANJIRI (Sued as the Legal representative of the estate of Violet Wanjugu Kariuki) ….………………1st DEFENDANT
THE LAND REGISTRAR NYERI……..……………….…2ND DEFENDANT
THE ATTORNEY GENERAL…………………………..…3RD DEFENDANT
RULING
1. The Applicant herein, who is the Plaintiff in the suit filed under Notice of Motion dated 30th October 2025, in which she prays for the following orders:
a) Spent.
b) That this Honorable Court be pleased to review the Judgment delivered on the 16th day of October 2025 on account of both mistake and the discovery of new and important evidence that was not before the Court.
c) That this Honorable Court be pleased to set aside the Judgment delivered on the 16th day of October 2025.
d) The court is requested to review the attached list of documents and the judgment delivered on the 16th day of October 2025, thereby allowing the suit in favor of the Plaintiff to save court time and avoid a multiplicity of applications.
e) That the costs of this application be provided for.
2. The application is supported by the Applicant's affidavit, in which the Applicant deposed that this Court delivered a judgment on October 16, 2025, in favor of the Defendant, holding that the Plaintiff's suit lacked merit and was dismissed for failure to produce documents as evidence.
3. It is the Applicant’s contention that there was a mistake on the part of her counsel, which resulted in the failure to produce documentation at the time of the hearing. However, there is now new and important evidence that was not adduced at the time of the hearing and that has a material bearing on the outcome of the suit.
4. As informed by her advocate of record, it is trite law that the mistake of counsel should not be visited upon a client.
5. Their explanation is that counsel for the Plaintiff had instructed someone to file the documents and was informed that they had been filed, but was unaware that the requisite legal documentation was not on the court record.
6. She annexed copies of the Limited Grant of Letters of Administration ad Litem to her husband’s estate, the late Michael Wangombe Githinji (Deceased), dated 4th November 2013 and 14th September 2023.
1. Further she stated that she has a list of documents, of which the Applicant prays that the court admits and uses to make its decision in this suit, in the interest of justice and annexed the same.
2. The Applicant deposed that she has been informed by her advocate on record, that Article 159(2)(d) of the Constitution states that in exercising judicial authority, one of the principles that shall guide the Courts and tribunals is that justice shall be administered without undue regard to procedural technicalities. Further, that Article 40 of the Constitution protects the right of every person, from arbitrary deprivation of property by any person including the Defendant, the Courts or the state, which right is under threat due to her just property being fraudulently transferred to another.
3. It is her claim that the deceased, her husband, had died having left her the suit property known as Thegenge/Karia/1182, which is was her only known home.
4. She deposed that the purported sale of the said suit premises known as Thegenge/Karia/1182 to one Silvester Wangombe Nderi via Agreement purported to have been made in the year 1985 was fraudulent, stating that the signature on the Agreement of sale allegedly belonging to the deceased was different from those on Affidavits by the Deceased sworn on the 2nd day of February 1996 and 13th February 1997 in a matter, HCCC NO. 225 OF 1993 as attached.
5. Further, that the deceased in the Affidavit denounced the Agreement purported to have been made between himself the said Sylvester Wangombe Nderi.
6. From the green card, it is indicated that the suit property was sold to one Violet Wanjugu Kariuki by Michael Wangombe, but there is no connection between the said Michael Wang’ombe and the said Violet Wanjugu Kariuki, who is a stranger to both the deceased and herself.
7. It is the Applicant’s contention that the mistake of failing to ensure documents were on record was an administrative action which ought to have been swept by the broomstick as envisaged under Article 159(2)(d) of the Constitution, and not deny her justice in an uncontroverted claim.
8. That she stands to suffer irreparable loss if she is arbitrarily deprived of the suit property, her only home which she owned together with her late husband.
9. As informed by her advocate on record, that the newly presented evidence and the mistake by counsel fall squarely within the scope of Order 45 rule 1 of the Civil Procedure Rules, 2010, which provides the grounds for review.
The Applicant’s written submissions
10. Counsel for the Applicant submitted that the Defendant/Respondent has not in any way countered or rebutted the Plaintiff's averments. This evidence of the Plaintiff remains uncontroverted, being the only evidence on record. Counsel relied on the authorities of Gateway Insurance Co Ltd v Jamila Suleiman & another [2018] eKLR and Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000.
11. It is their submission that there was some mistake on the part of counsel for the Plaintiff, which occasioned failure to adduce documentation, at the time of the hearing. That currently, there is new and important evidence which was not adduced at the time of the hearing which have a material bearing on the outcome of the suit. This evidence was not presented before the court at the time of hearing, and ought to be adduced.
12. Further that it is trite law that the mistake of counsel should not be visited upon a client, relying on the cases of Belinda Muras & 6 Others -Vs- Amos Wainaina [1978] KLR, Ezekiel Kamau v Muchoki Mwai Willson [2015] eKLR and Phillip Chemwolo & Another -Vs- Augustine Kubede [1982-88] KLR 103
13. Counsel quoted the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, submitting that the Civil Court has the power of to review its orders.
14. That there is not only new evidence which was not produced at the time of the hearing, but there is also an error apparent on the face of record, noting that there is also no other opportunity to add the relevant documentation. On this point, they relied on the authority of Nyamogo and Nyamogo Advocates Vs. Kago (2001) 1EA 173.
15. It is the Applicant’s submission that an error apparent on the face of record cannot be defined precisely or exhaustively and is left to be determined on a case by case basis. Thus, the omission is thus a material procedural error which deprived the Plaintiff/Applicant of the opportunity to prove her case.
16. It is the Counsel’s plea that the prejudice to the Plaintiff/Applicant is fatal if left unaddressed, as she would be condemned unheard. They relied on Article 50(1) of the Constitution of Kenya, 2010, which guarantees the right to a fair hearing, and Article 159(2)(d) of the Constitution of Kenya, 2010 which obliges the court to administer justice without undue regard to procedural technicalities.
17. Counsel relied on the following authorities on the right to fair hearing:
Douglas Wambua Mutula V Kenya Ports Authority [2020] eKLR
Sabei District Administration V Gasyali & others (1968) E.A 300
Mbaki & others V Macharia & another (2005) E.A 2006
18. Counsel submits that there will be a breach of the Applicant’s rights under Article 50 of the Constitution if she is not heard just due to a procedural technicality. The Plaintiff avers that every person is guaranteed to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court and prayed that the application be allowed.
ANALYSIS AND DETRMINATION
19. The Plaintiff, who is the Applicant in the instant application instituted this suit vide Plaint dated 7th December 2023, in which the Plaintiff averred that around the year 1985, her late husband Mr. Michael Wang’ombe Githinji is alleged to have entered into a sale agreement with one Silvester Wang’ombe Nderi, for the purchase of Land Reference Thegenge/Karia/1182, which she claims was a forgery and the terms of the sale agreement were never complied with.
20. The suit was undefended. However, during the hearing that proceeded on the 4th of February 2025, the Plaintiff failed to produce any documents to support her case and only adopted her witness statement dated 7th December 2023. This Court rendered its judgment on the 16th of October 2025, dismissing the Plaintiff’s claim on the basis that she did not produce any documents to prove her case.
21. The Applicant now claims that this was an inadvertence on her Counsel’s part and that there is now new evidence which was not produced at the time of the hearing, but there is also an error apparent on the face of record.
22. The statutory provisions that govern orders of review are Section 80 of the Civil Procedure Act CAP 21 and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides that:
“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”
23. Order 45 Rules 1 of the Civil Procedure Rules (2010) provides that:
“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.”
24. The elements necessary for orders of review have been widely elaborated by the Courts. In the case of Francis Njoroge v Stephen Maina Kamore [2018] eKLR the Court held that:
“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist:-
(a) There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or
(b) There was a mistake or error apparent on the face of the record; or
(c) There were other sufficient reasons; and
(d) The application must have been made without undue delay.”
25. The requirements for review are therefore the discovery of a new and important matter that could not have been known at the time the decree or order was issued, a mistake or error apparent on the face of the record, or for any other sufficient reason, which application should be made without undue delay.
26. While I do note that the application has been made without unreasonable delay, being filed 15 days after judgment was delivered, I note that the documents relied on their supporting affidavit cannot constitute 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 as the Applicant states. This is due to the fact that these were all documents that were in the Applicant’s prior knowledge and/or possession, and that she failed to file the same in Court, which she states was due to the mistake of her Counsel.
27. Thus, we ought to interrogate the second reason for allowing a review, that is on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is the Applicant’s case that her Counsel on record had sent someone else to file a bundle of documents, which they failed to do, and it appears that Counsel did not notice this at the time of hearing and only came to this knowledge after the judgment was already delivered.
28. As it was held in the case of Kenneth Nyaga Mwige vs. Austin Kiguta & 2 Others (2015) eKLR which this Court cited with approval in the Judgment :-
“How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not became part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents- this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone but it would take into consideration all facts and evidence on record.”
29. The Plaintiff neither marked nor produced the documents that she wished to rely upon. It is the Applicant’s contention that the mistake of Counsel should not be visited upon a litigant. They relied on the authority of Ezekiel Kamau v Mchoki Mwai Willson [2015] KEHC 8246 (KLR), in which the Court held that:
“Ordinarily a mistake by an advocate would be excusable mistake when it is apparent that a litigant was not part of his counsel’s negligence or lack of diligence in attending to a matter as directed by the court.”
30. Similarly, the Court of Appeal in CFC Stanbic Limited versus John Maina Githaiga & another [2013] eKLR, held as follows-
"On the issue of the mistake of counsel, it is not in dispute that the appellant gave instructions to its advocates in good time once it was served with the pleadings and summons to enter appearance. Therefore, the failure to enter appearance and file a defence is clearly attributable to its advocate who failed to enter appearance and file defence in good time. This being the mistake of counsel, the same ought not to be visited upon the appellant. This Court is guided by the case of LEE G MUTHOGA V HABIB ZURICH FINANCE (K) LTD & ANOTHER, CIVIL APPLICATION NO. NAI 236 OF 2009, where this Court held: "It's a widely accepted principle of law that a litigant should not suffer because of his advocate's oversight." In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel.”
31. I also believe that the mistake by the Applicant’s Counsel of record should not be visited upon her. In my opinion, the Applicant, being a layperson, was unaware of the procedures for a hearing and how documents ought to be produced. The suit was not substantially heard on the merits, and the Applicant can be given a fair chance to prosecute her appeal in the interest of justice.
32. Justice GV Odunga(as he then was), held as follows in the case of Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR :
“In considering whether or not to set aside a judgement, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge.”
33. Counsel for the Applicant also relied on the case of Mutula v Kenya Ports Authority (Cause 2 of 2020) [2020] KEELRC 1940 (KLR), in which the Court observed that:
“The rules of procedure are not to be taken as idle instructions. However, to deny a party the opportunity to be heard simply because they are late by a few days, would in my view, be a great injustice.”
34. It is therefore my opinion that the judgment delivered by this Court on the 16th of October 2025 qualifies for review, but only on the mistake of the Counsel in failing to file the documents to be relied upon and failure to guide the Plaintiff on production of documents during the hearing, and the Applicant may be granted a fresh hearing after filing her bundle of documents.
35. The entire judgment is reviewed and set aside, and the applicant is required to file proper documentation within 14 days hereof. The defendant is reserved for a de novo hearing.
36. No order as to costs
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