Njoroge & 2 others v Nduati & another (Environment and Land Case 7 of 2020) [2026] KEELC 3622 (KLR)
The bottom line
#A Kenyan court refused to undo a land judgment, ruling that unpreparedness is not a valid reason for review and litigants must follow their own cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants were condemned unheard such that the judgment of January 30, 2025 should be set aside or reviewed
- 2.Whether the Applicants have met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
- 3.Whether the firm of Gori, Ombongi & Co. Advocates should be granted leave to come on record after entry of judgment
- 4.Whether the simultaneous filing of a Notice of Appeal and a review application amounts to an abuse of court process
Key legal issues
#Whether the Applicants were condemned unheard
No - the record showed the Applicants filed a defence, witness statement, documents and submissions and were represented throughout, with multiple adjournments granted at their request before the defence case was marked closed.
The court traced the record: C.M King'ori & Company entered appearance in February 2020 and filed a defence, witness statement and documents in May 2021. Hearing adjournments were sought and granted repeatedly - for settlement, misdiarization, lack of service notice, and the 3rd Defendant's inability to travel from Mombasa. After the final adjournment the court closed the defence case. The Applicants' complaint of being unheard was thus contradicted by the record.
Whether the grounds for review under Section 80 CPA and Order 45 Rule 1 were established
No - failure to present the defence case because counsel was unready is not a ground for review, and no error apparent on the face of the record or new matter was shown.
Applying Francis Njoroge v Stephen Maina Kamore, the court held the four prerequisites were not met. The Applicants did not demonstrate any inadvertence by counsel beyond counsel's own absence, and litigants must follow up their own cases. Relying on Alpha Fine Foods and Ajit Kumar Rath, mere desire for a fresh hearing cannot ground review.
Whether review and appeal can be pursued simultaneously
No - having filed a Notice of Appeal dated February 14, 2025, the Applicants could not also seek review of the same judgment.
Section 80 permits review of a decree or order from which no appeal has been preferred. The simultaneous pursuit of an appeal in the Court of Appeal and a review in this court was treated as rendering the application incompetent, consistent with the 1st Respondent's abuse-of-process objection.
Legal principles established
#- A court may only review its orders on discovery of new and important matter, error apparent on the face of the record, other sufficient reasons, and where the application is made without undue delay.
- A case belongs to the litigant and not the advocate; a litigant must pursue prosecution of the case and cannot blame counsel's mistakes alone.
- A review cannot be sought merely for a fresh hearing; 'any other sufficient reason' must be analogous to the grounds specified in the rule.
- A party cannot simultaneously seek review of a judgment and appeal against the same judgment.
Court orders
#- 1.The application dated April 1, 2025 is dismissed
- 2.The Applicants to pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, CAP 21 and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction of the court which passed the decree)
Relief refused
#Leave for Gori, Ombongi & Co. Advocates to come on record after entry of judgment
The entire application was dismissed for failure to meet the review threshold
Stay of execution of the judgment delivered on January 30, 2025
Respondent deposed that the suit property had already changed ownership in compliance with the decree; application dismissed
Setting aside the ex parte judgment and decree and leave to defend the suit on the merits
Applicants participated fully in the suit through counsel, repeatedly obtained adjournments, failed to demonstrate counsel's inadvertence, and cannot pursue both review and appeal
Costs
Application dismissed with costs to the 1st Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the current application lacks merit because it does not meet the threshold for the grant of orders of review or setting aside, and it is hereby dismissed with costs.
It is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case.
the Applicants have already filed a Notice of Appeal dated February 14, 2025, and therefore cannot seek both a review and an appeal at the same time.
failure to present your case before the Court for being unready to proceed is not a valid ground for review under the above-quoted statutory provisions and court decisions.
If they seek to lay blame on the previous Counsel for failing to inform them of the hearing dates, they are also at fault for failing to follow up on their case.
Issues in the judgment
#The judgment date is inconsistently stated - paragraph 2 says judgment was entered on January 30, 2023 while the application and paragraph 36 refer to a judgment of January 30, 2025 and a Notice of Appeal dated February 14, 2025.
The applicants' authorities on being condemned unheard (including Belinda Murai) were cited but not expressly adopted or distinguished by the court in its analysis, leaving their treatment unaddressed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge & 2 others v Nduati & another (Environment and Land Case 7 of 2020) [2026] KEELC 3622 (KLR)", Case Analysis (2026). ELCC No. 7 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3622/eng@2026-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.