Mwalembe & another v Freedom Ltd

ii. That the costs of this application be provided for.” 2. The application is supported by the grounds on its face and a brief adavit of Chai Lwambi Mwalambe, the 1st applicant, deposed on 7th April 2025. He stated that, upon perusing the impugned judgement and, in particular, paragraph 30, they (the applicants) established that this Court did not appreciate that their advocate then on record, namely M/s. L.N. Momanyi Advocates, did not have instructions to execute the consent dated 18th January 2020; that, at page 82 of the Record of Appeal, there was a Notice of Change of Advocates from the rm of M/s. L.N. Momanyi to the rm of M/s. Osoro & Company Advocates dated 13th January 3. The applicants stated that, if this Court appreciated the fact of the change of advocates, it would have assisted in giving eect to the intention of the Court in the said judgement; and that the inadvertent slip of missing out on page 82 is an accidental one which can be rectied to meet the ends of justice. The applicants urged that the review of the Judgment would not occasion any loss to the respondent as, in any event, it can be compensated by way of costs upon successful determination of the suit. 4. Opposing the application, the respondent led a replying adavit sworn by one Harji Govind Ruda, its Director, on 26th July 2026. It is deposed that the issues of the validity of the consent, the authority of the advocates who executed the same and the grounds advanced for setting aside the consent have already been determined by this Court; that, contrary to the applicant’s allegations, paragraph 5 of the impugned Judgement specically pointed out that Mr. Osoro advocate appeared before the Environment and Land Court on behalf of the applicants on 21st January 2020 on a mention to conrm compliance with the directions to le written submissions; that the present application therefore seeks to re-open litigation already determined and, hence, it was devoid of merit and should be dismissed with costs. 5. As a brief background, the subject matter in dispute between the parties was the ownership of Kili/ Mgumopasta/Mazera/1263 (the suit property). The applicants’ contestation was that they oered to sell, and Freedom Limited (the respondent), accepted to purchase the suit property measuring 8 acres for a consideration of Kshs. 300,000 per acre through a sale agreement dated 25th February 2021. The applicants alleged that, despite the sale not having materialised, the respondent transferred the suit property to itself. This is what precipitated the suit before the Environment and Land Court (the ELC) at Malindi. 6. Before the trial court, the applicants were granted temporary injunction orders restraining any party from interfering with the suit property. On account of failure to prosecute the suit, the respondent led an application dated 28th March 2019 seeking to have the suit dismissed for want of prosecution. The application was not prosecuted but, instead, the applicants led another application dated 18th October 2019 seeking further temporary injunctive orders against the respondent. 7. Mention to conrm compliance with the directions of ling written submissions was set for 21st January 2020. However, on the said date, learned counsel Mr. Osoro present for the applicants and learned counsel Mr. Kabaara appearing for the respondent informed the court of a consent executed on behalf of the parties by the outgoing Advocates on the following terms: SUBPARA “1. That the defendant- FREEDOM LIMITED, legally purchased for value and acquired eight (8) acres curved out of all that parcel of land known as Kili/Mgumopasta/ Mazeras 953 from the 1st and 2nd plaintis leaving out three (3) acres designated for the 1st and 2nd plaintis use and settlement from the original acreage of eleven (11) acres of the parcel of land known as Kili/Mgumopasta/Mazeras 953. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25 2

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2. That the 1st and 2nd plaintis hereby acknowledge to be in receipt of the sale and consequent purchase price of all that parcel of land known as Kili/ Mgumopasta/Mazeras 953 from the defendant and consequently have no further claim against the defendant; 3. That the Registrar Kili Lands Registry shall with immediate eect amend and rectify the title deed in respect of the land parcel known as Kili/ Mgumopasta/Mazeras 1262 curved out of the original Kili/Mgumopasta/ Mazeras 953 to reect its acreage as three (3) acres in the names of Chai Lwambi Mwalambe and Thomas Lwambi Mwalambe: culminating in the recall and consequent amendment of rectication of such title deed to reect such acreage aforestated; 4. That the Kili County Surveyor shall survey, beacon the parcels of land as Kili/Mgumopasta/Mazeras 1262 to reect three acres and the parcel of land as Kili/Mgumopasta/Mazeras 1263 in the names of Freedom Limited as of the acreage of eight (8) acres shall cause the survey map and deed plan to be drawn within fourteen 914) days of the date hereof; 5. That the costs of the survey, beaconing and amendment of title in respect of the aforestated parcels of land shall be borne by the defendant; 6. That the rights of ownership, use and occupation of the parcels of land hereinbefore stated shall be adhered to in line with the provisions of Article 40 of Constitution of the Republic of Kenya and shall bind the 1st and 2nd plaintis and the defendant and their heirs, family members, successors and a such person and/or proxies thereto; 7. That each party shall bear its own costs.” 8. Subsequently, the applicants, in their personal capacity, led an application dated 21st March 2022 seeking to set aside the terms of the aforementioned consent. Their contention was that the rm of advocates then representing them, namely L.N. Momanyi & Co. Advocates signed the consent without their authority, and that they were not aware of the terms thereof. 9. By a ruling dated 10th November 2022, the learned Judge (Odeny, J.) declined to set aside the consent order. The applicants then led another application dated 1st December 2022 asking the court to set aside and/or vary the orders emanating from the orders made on 10th November 2022. The learned Judge (Makori, J.) dismissed the application on nding that there were no new grounds raised to warrant the court to review the orders earlier issued on 10th November 2022. 10. Aggrieved by the decision of Makori, J., the applicants, still acting in person, led an appeal to this Court. Only the applicants participated in the appeal. The solitary issue which this Court identied for consideration was whether there were plausible grounds raised to warrant setting aside the consent orders led on 21st January 2020. 11. This Court dismissed the appeal and upheld the decisions of Odeny & Makori, JJ. in their rulings dated 10th November 2022 and 31st May 2023 respectively. In this application, the applicants are aggrieved https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25 3

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by the pronouncements made at paragraphs 30, 32 and 33 and request that we review them. The said paragraphs read as follows: “ 30. Unfortunately, in this case, the appellants failed to substantiate the allegations that their counsel did not have authority to execute the consent judgement. The elements of fraud or misrepresentation on the former appellants’ advocates was not demonstrated, not even by a simple sweeping statement that they had taken any action against the counsel misrepresenting their instructions to the court. This is conclusive testament that they could not support the assertion that they had not instructed the counsel to sign and le the consent judgement. We are therefore not persuaded that the appellants were not aware of the terms of the consent. 32. The consent was led in court on 21st January 2020 while the application before Odeny, J. was dated 21st March 2022, a whole 2 years and 2 months apart. We wonder why it took this long to seek redress. Yet, even if the existing Covid-19 pandemic caused the restriction of many activities in Kenya and indeed world over, it is imperative to note that court registries in Kenya were operating. In fact, after the pandemic hit, it did not take two years but a few months for the Kenyan Judiciary to introduce online virtual ling system. In fact, the virtual ling rolled over in to virtual hearings which we are now benetting from. No reason has been advanced as to why the appellants did not take advantage of this progressive technology to come to court and seek redress. We can only guess what precipitated the grievance was a change of mind following adoption of the consent, for which this Court cannot come to their aid. They just have to live with the binding terms of the consent judgement they voluntarily entered into. 32. Having made the above observations, we nd that there were no compelling grounds to set aside the consent judgement led on 21st January 2020. We do not think that the learned Judges Odeny, J., and Makori, J. erred in their rulings dated 10th November 2022 and 31st May 2023 respectively.’’ 12. We heard this application virtually on 21st July 2026. Learned counsel Mr. Achoka was present for the applicants while learned counsel Mr. Borana appeared for the respondent. 13. Mr. Achoka highlighted the submissions dated 6th July 2026. He submitted that there was a Notice of Change of Advocates which predated the consent; and that courts ought to have considered the timing of ling of the Notice of Change of Advocates to the eect that the new advocates came on record prior to the signing of the consent; and that the mistake was tantamount to an error arising from an accidental slip or omission which this Court ought to correct on application of the slip rule as was held by the predecessor of this Court in Vallabhdas Karsandas Raniga vs. Mansukhlal Jivraj & Others (1965) E.A.; and in Nguruman Limited vs. Shompole Group Ranch & Another (2014) KECA 358 (KLR). 14. On the respondent’s part, Mr. Borana highlighted written submissions dated 26th July 2026. He submitted that Rule 37 of this Court’s Rules, 2022 allows the Court to correct clerical or arithmetic mistake, and accidental slip or omission; and that this Court is not allowed to reconsider and/or revisit its ndings or substitute the conclusions reached at in an impugned decision. 15. Counsel further submitted that the applicants were inviting this Court to review paragraphs 30, 32 and 33 of its own judgement, but that no reasons had been advanced for setting aside the ndings https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25 4

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therein. Counsel stated that the applicants had not demonstrated any accidental omission occasioned by the Court for failure to annex the page which they state was overlooked in their application; and that the record expressly showed that Mr. Osoro appeared in the trial court on behalf of the applicants on 21st January 2020, a fact which was not overlooked by the Court, hence the alleged fact of accidental omission was not demonstrated. Counsel referred to the decision of Benjoh Amalgamated Ltd & Another vs. Kenya Commercial Bank Ltd (2014) KECA 872 (KLR) for the principles that guide the Court in an application for review, which principles have not been satised by the applicants. We were thus urged to dismiss the application. 16. We have considered the application, the response thereto, the submissions by the respective parties, the authorities cited and the law. The solitary issue that falls for determination is whether it merits review of the Judgment of this Court delivered on 21st February 2025. 17. The jurisdiction of this Court to correct its decision is underpinned in Rule 37(1) and (2) of this Court’s Rules, 2022 which provide: 37. 18. Correction of orders 1. A clerical or arithmetical mistake in any judgement of the Court or any error arising therein from an accidental slip or omission may,at any time, whether before or after the judgement has been embodied in an order, be corrected by the Court, either of its own motion or on the application of any interested person so as to give eect to the intention of the Court when judgement was given. 2. An order of the Court may be corrected by the Court at any time, either of its own motion or on the application of any interested persona. if it does not correspond with the judgement it purports to embody; or b. where the judgement has been corrected under sub rule (1), if it does not correspond with the judgement as so corrected. It is settled law that this Court has jurisdiction to correct any error arising from an accidental slip or omission and the circumstances under which the jurisdiction can be invoked. The predecessor of this Court in Lakhamshi Brothers Limited vs. R. Raja & Sons (1966) EA 313, as per Newbold, JA. rendered itself thus: “Indeed, there has been a multitude of decisions by this Court, on what is known generally as the slip rule, in which the inherent jurisdiction of the court to recall a judgment in order to give eect to its manifest intention has been held to exist. The circumstances however, of the exercise of any such jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to judgment to give eect to the intention of the court when it gave its judgment or to give eect to what clearly would have been the intention of the court had the matter not inadvertently been omitted.” (Emphasis added). 19. In Mukuru Munge vs. Florence Shingi Mwawana & 2 others (2016) KECA 54 (KLR), this Court pronounced itself as follows: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25 5

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‘‘The residue power of the Court to reopen its decisions is therefore a circumscribed power to be exercised in exceptional cases. That power is not intended to circumvent the principle that, save in those cases where the Constitution allows an appeal to the Supreme Court, decisions of this Court are otherwise nal. Beyond the residual power to reopen a decided case, it must be pointed out that under rule 35 (1) of the Court of Appeal Rules, (commonly referred to as the slip rule), the Court has power to correct any clerical or arithmetical mistake in its judgment or any error arising therein from an accidental slip or omission. The Court may undertake that correction of its own motion or on the application of any interested person, and at any time whether before or after the judgment has been embodied in an order.’’ 20. The central issue in this application which the applicants want us to nd is that the rm of M/s. L. N. Momanyi & Co. Advocates which signed the consent dated 18th January 2020 on their behalf did not have the authority to do so. The applicants argue that, by the time the consent was signed, there was a Notice of Change of Advocates on record from the rm of L. N. Momanyi to the rm of Osoro Advocates dated 13th January 2020. 21. The fact that the Notice of Change of Advocates was rst in time prior to the ling of the consent is not disputed. While this is the correct position, it baes us why learned counsel Mr. Osoro at the mention of 21st January 2020 before the trial court proceeded to allow the consent to be adopted as the order of the court if indeed his clients did not agree to the terms thereof. The logical action which Mr. Osoro ought to have taken if he had no instructions from the applicants was to decline the adoption of the consent. For him to have proceeded and cement the terms of the consent, leads to the inevitable conclusion that he had advised his clients accordingly, and that his clients had, in turn, instructed him to proceed accordingly. That can only explain why he did not raise any objection to the adoption of the consent. He thus ably represented the applicants in the process of adoption of the consent. 22. Whether the consent is to be looked at from the angle that the rm of L. N. Momanyi Advocates had no authority to sign it as there was already a change of advocates, what remains clear is that the rm of Osoro Advocates, who were then properly on record, agreed to the adoption of the consent with no objection. Furthermore, and an issue that cannot be overlooked, the application to set aside by Odeny, J. in the ruling of 10{^th} on 21st the consent was led and was dismissed March 2022, some two years later, November 2022. Just as this Court noted in the impugned judgment, no plausible explanation was advanced for the delay in approaching the trial court to review its ruling. 23. Further to the foregoing, by concession of Mr. Achoka, the previous counsel on record did not receive notication of the Notice of Change of Advocates and, therefore, they could not have known of the changes. Even so, the counsel who came on record was not ambushed on the existence of the consent. This is so because he proceeded to rubber- stamp it by having it adopted as an order of the court in his presence. 24. For the foregoing reasons, we are of the respectful view that, if we are to review the afore-stated paragraphs as prayed, the same would be tantamount to changing the landscape and character of the entire judgment. We say so because, what the applicants are asking us to do, is not just to exercise our residue jurisdiction under Rule 37(1) and (2), but are relitigating the entire appeal. This is attested by the fact that this Court succinctly determined the issues by reviewing the record of appeal as the rst appellate court and determined all the matters, which the applicants now ask us to review. We cannot sit on appeal on our own decision. As was emphasised by this Court in Nguruman Ltd vs. Shompole Group Ranch & Another (supra); and in Benjoh Amalgamated Limited vs. Kenya Commercial Bank Limited [2024] KECA 593 (KLR), the jurisdiction of this Court to review its judgments must be https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25 6

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exercised in limited circumstances so as to "avert opening a ood gate for applications challenging the correctness of decisions.” 25. Consequently, we nd that the applicants have not advanced any plausible grounds upon which we can review this Court’s 21st Judgment delivered on February 2025. Accordingly, the application is bereft of merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT MALINDI THIS 25TH DAY OF SEPTEMBER, 2026. F. TUIYOTT JUDGE OF APPEAL ............................. DR. K. I. LAIBUTA CArb, FCIArb. JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR F. W. NGENYE-MACHARIA JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25 7

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