1. The Plaintiff filed the Chamber Summons application dated 24th October 2024 seeking orders that:-
1. Spent
2. THAT this Honourable Court may be pleased to REVIEW its ruling delivered on 17th October 2024 and the application dated 31/5/2024 be RESTRAINED, REVIEW and be heard on merit
3. THAT the cost of this application be in the cause
2. The application is supported by the Plaintiff/Applicant's affidavit. The grounds upon which the orders are sought are that he brought this case against the Defendant Respondent for an order to open a road of access that passed through Land Parcel No. Mweiga/Gakanga/206, which is government land through Notice of Motion dated 31st May 2024.
3. The application above was dismissed by this Court on 17th October 2024 for lack of proper evidence.
4. The Applicant noted that the Respondent in her written statement of Defence admits that there is a public road which passes through the suit land, and it is unfortunate that the application was dismissed after the Defendant/Respondent lied in her replying affidavit.
5. The Applicant states that his land parcel No. Mweiga/Gakanga/281 is on the lower part of the said road that the Respondent has closed, yet she claims that he has directed rain water to her land, which cannot flow upwards but downwards.
6. The Applicant annexed photographs to show how the Respondent has closed the said road and has put up structures where the road should pass. He also shows how school-going children are suffering because the road they pass through when going to school is blocked. He further annexed a letter from the area Assistant Chief addressed to the Assistant County Commissioner, Kieni West Division and prayed that the application be heard on merit.
7. On 9/4/2024, the Applicant claims that 2 of the Respondent's sons confronted him on the said road and were about to attack him, but were prevented by one Francis Ndungu Njugi.
The Defendant/ Respondent’s Replying Affidavit
8. The Defendant/Respondent swore an affidavit in response to the application, contending that the application is incurably defective as it is not brought by way of Notice of Motion and the provisions under which it is brought are not quoted.
9. Further, she deposed that there is no new discovery, error on the face of the record or sufficient reason to warrant a review of this court’s ruling.
10. The Respondent, therefore, contends that the application is a back-door appeal from the ruling of this Court, and that the applicant is asking this Court to sit on appeal on its own decision.
11. About the photographs annexed to the application, the Applicant deposed that they were not taken from the road that neighbours her homestead. She stated that as indicated in her previous replying affidavit of 14/6/2024, the area MCA had commenced the process of renovating the road leading to the junction of Gakanga Secondary School. The exercise was undertaken by the government surveyor, who informed the affected landowners that there was a road passing through their farms, but they sought a second opinion from a private surveyor, who informed them that the road was not supposed to pass through their farms.
12. Therefore, it is the Respondent's case that the affected people are the ones who closed the road that traversed through their land, and their actions did not involve her in any way. The letter that the applicant has shared is from these people who complained to the area chief. She insisted that the issue has nothing to do with her land and is not near her land, as it is around 400 meters from her farm.
13. The Respondent also denied that the people in the photographs are her sons and wondered how the Plaintiff was assaulted while taking a photograph at the same time. In any case, that assault is a police issue.
14. The Respondent states that the proper remedy for the Applicant is to set down the case for hearing so that the issue can be settled once and for all, but not to end in unnecessary litigation, and urged the court to dismiss the case with costs to her.
The Applicant’s Answer to the Replying Affidavit
15. The Applicant filed a response to the Respondent's replying affidavit, deposing that his application is necessary and timely because the court had only found that he had not attached any photographs to show the closed road, which he has done now.
16. In response to the Respondent's contention that the application is defective and is a back-door appeal, he stated that it is based on the provision of the relevant order in the Civil Procedure Act, CAP 21 Laws of Kenya, 2010.
17. The Applicant contends that the area Member of the County Assembly had started to undertake repair of the road, but due to the hostility and closure of the road by the Respondent, the contractor could not complete the road.
18. He added that the Respondent and her sons have been very hostile, which has led to the accumulation of reports at Endarasha Police Station, and this court has a duty to safeguard the interests of the road users. He also denied that the area shown in the Respondent's annexed photographs is the road in question.
Applicant’s Written Submissions
19. The Applicant submits that the reason the Court dismissed his application dated 31/5/2024 was that he had not enclosed any photographs to show the road which the Respondent had closed, which he has done now in the instant application. It was also submitted that he has filed this application without inordinate delay.
20. According to the Applicant, the Respondent's family is taking advantage of the dismissed application to harass and issue threats to the Local Administrators and the Police. The family took the dismissal of the application as a license to create lawlessness within that area.
21. It is the Applicant’s submission that in her replying Affidavit, the Respondent has admitted that the road is there but it has been closed which caused the area Assistant chief to write to the Assistant County Commissioner to complain about this closure where vehicles, boda bodas and the school going children mentioned in that letter are suffering to access the road.
22. Regarding the photographs annexed to the Respondent's replying affidavit, the Applicant submits that they are not for that area in question, and they have been taken from elsewhere and brought to this court, and they do not show anything relevant to the claim of the road closed by the Respondent.
23. To conclude, the Applicant requested this Honourable court to allow his Application for review dated 24/10/2024 and to reinstate his Application dated 31/5/2024 and urged the court to consider them together.
Respondent’s submissions
24. The Respondent submits that the instant application is incurably defective and not brought by way of notice of motion, and the provisions under which it is brought have not been quoted.
25. It is also submitted that the grounds for review have not been met as there is no discovery, error on the face of the record or sufficient reason to warrant a review of this Court's rulings and that this application is a backdoor appeal.
26. It is also submitted that the photographs annexed to the Plaintiff’s application were taken far from the road that neighbours the respondent's homestead and that the affected land owners are known, who live 3 farms away from her farm, and the respondent is not affected by their activities in any way.
Analysis and Determination
27. The background to this suit is a Plaint dated 31st May 2024 in which the Plaintiff/Applicant herein prays that the Defendant be ordered to permanently open the public road of access which passes through Government Land Parcel No.Mweiga/Gakanga/206 and seeks the assistance of the local administration and police to do this. He also filed an application of the same date seeking the same orders.
28. On 17th October 2024, this Court dismissed the aforesaid application through a ruling delivered by Olola J. The Court found that the Applicant failed to back his claims with any tangible evidence. The Applicant now seeks a review of these orders, having annexed photographs of the Respondent's alleged actions of blocking the access road in question.
29. Orders of review are statutorily based on 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 the judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit
30. Order 45, Rule 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.”
31. The application herein is titled a Chamber Summons. Order 51, rule 1 of the Civil Procedure Rules provides that:
“All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.”
32. Order 51 Rule 10 provides that the provision under which an application is made is to be stated. However, under sub-rule 2, it is provided that no application shall be defeated on a technicality or for want of form that does not affect the substance of the application. The rule states as follows;
(1) Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.
(2) No application shall be defeated on a technicality or for want of form that does not affect the substance of the application.
33. Further, the provisions of Article 159 of the Constitution emphasize the administration of justice without undue regard to procedural technicalities as pronounced by Nambuye JA in the case of Njoroge & another v Njoroge & another (Civil Application E106 of 2021) [2021] KECA 258 (KLR) (3 December 2021) (Ruling) in a similar application found that:
“While the non-technicality principle in Article 159(2)(d) of the Constitution of Kenya, 2010. It provides:
159 (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles -
d. Justice shall be administered without undue regard to procedural technicalities;
The parameters for the invocation and application of this principle have also been crystallised by case law. See Jaldesa Tuke Dabelo vs. IEBC & Another [2015] eKLR; Raila Odinga and 5 Others vs. IEBC & 3 Others [2013] eKLR; Lemanken Arata vs. Harum Meita Mei Lempaka & 2 Others [2014]eKLR; Patricia Cherotich Sawe vs. IEBC & 4 Others [2015]eKLR for principles/propositions inter alia that: the exercise of the jurisdiction under Article 159 of the Constitution is unfettered especially where procedural technicalities pose an impediment to the administration of justice save that Article 159(2)(d) of the Constitution is not a panacea for all procedural ills.”
33. The court finds that the fact that the application dated 24th October 2024 was filed as a Chamber Summons instead of a Notice of Motion as provided under the Civil Procedure Rules, and further that the said application does not cite the provisions under which it is brought, is not fatal to the said application. The court, after perusal of the application, can tell the provisions of law under which the application is filed. The court will thus exercise its discretion and hear the application on merit.
34. The substantive application requires examination of the elements necessary for orders of review to be granted. These elements have been widely elaborated by the Courts, and in the case cited by the Respondent, 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.”
35. Mativo J(as he then was) observed in the case of Alpha Fine Foods Limited v. Horeca Kenya Limited & 4 others(2021)eKLR as follows:
“The power of review can be exercised by the court in the event of discovery of new and important matter or evidence which, despite exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. As 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. stated: -
"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.
36. In this case, the Applicant insists that the Respondent has indeed blocked the access road and that she lied in her replying affidavit to the previous application dated 31/5/2024. He has annexed photographs of the said road and added that he was accosted and almost assaulted by the sons of the Respondent.
37. In the court’s view, the additional documents adduced and averments made amount to the introduction of evidence to fill in gaps in the Applicant's initial application that failed due to a lack of evidence. The Applicant has not shown that there was 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 averments made and the documents adduced were, in the court's view, within the applicant’s knowledge or could have been easily acquired by him. The Applicant has, in its view, not shown that there is an error apparent on the face of the record.
38. The Learned Judges of the Supreme Court in the case of Khalid & 16 others v Attorney General & 2 others (Application 32 of 2019) [2020] KESC 30 (KLR) quoted a Nigerian case as follows:
“In the words of the Nigerian Supreme Court in the case of Citec International Estate Ltd. & Others v. Francis & Others (2014) LPELR-22314 (SC); that was cited in the Outa case, "An application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome…””
39. In the Court's view, the Plaintiff/Applicant is using the application herein to re-litigate and/or re-open the issues that were the subject matter of the application dated 31/5/2024 merely because he is unhappy with the outcome of the said application. He has thus fallen afoul of the findings of the Supreme Court in the above-cited case of Khalid & 16 others (supra). The Applicant has not shown any legal or compelling reason why the discretion of this Court to review its decision should be exercised. It would be in the best interest of justice of both parties that the matter proceed for hearing expeditiously and parties be heard substantively, where they will have the chance to produce evidence and the Court shall make a conclusive determination.
40. The final orders of the Court are that the Chamber Summons application dated 24th October 2024 is hereby dismissed with costs to the Defendant/Respondent.
Delivered, Dated and Signed at Nyeri on 1st day of August 2025