Mugambi & 5 others v Mwithi & 7 others

RULING 1. In their application by Notice of Motion dated 2nd February 2026, the applicants seek orders: “ to review, vary and/or set aside” the judgment of this Court in this matter dismissing their appeal; that review be granted on the ground of discovery of new and important evidence which was not within their knowledge and could not be produced at the time the appeal was heard despite exercise of due diligence; that upon review, the judgment of the Environment and Land Court (ELC) dated 25th May 2021 (which gave rise to the appeal to this Court) be set aside; and that the matter be remitted back to ELC for retrial and determination on merit. 2. The context within which the application is made is that the applicants’ claim for adverse possession before the ELC at Chuka in ELC OS No. 1 of 2019 consolidated with ELC OS No. 20 of 2019 was dismissed by the ELC in a judgment delivered on 25th May 2021. Aggrieved, the applicants led this appeal, within which the present application is made. In a judgment delivered on 11th December 2025 this Court (W. Karanja, S. ole Kantai & Ali-Aroni, JJ.A.) pronounced that, “we are in agreement with the ELC Judge that the appellants did not prove their claim for adverse possession” and dismissed the appeal. Hence the present application. 3. In his adavit supporting the application, David Mutigi Karigu, the 5th applicant deponed that the dispute relates to land formerly known as South Tharaka/ Tunyai A/390 over which the applicants maintain they have been in open, continuous and actual occupation and possession for periods ranging between 26 and 33 years; that subsequent to delivery of the judgment by this Court, the applicants obtained “new and important evidence from the Area Chief of the locality where the suit land is situated conrming that the applicants have indeed been in long standing occupation and possession of the suit land”; that the new evidence consists of written conrmation and a sworn statement by the Area Chief; that the evidence was not within their knowledge and could not, despite exercise of due diligence, be obtained or produced earlier “as the Area Chief had not previously formally documented or availed such conrmation and was not involved in the proceedings”; that the evidence is material and credible and would have a signicant bearing on the determination of the question of occupation; and that unless the judgment of this Court is reviewed to allow consideration of the newly discovered evidence, the applicants stand to suer grave injustice including permanent dispossession of the land they have occupied for many years. 4. We heard the application on 22nd April 2026. Learned counsel Miss. Nkirote held brief for Mr. Mbaabu M’Inoti for the applicants. There was no appearance for the respondents despite notice of hearing having been served. Miss. Nkirote relied on the applicants’ written submissions dated 3rd March 2026. 5. In those submissions, the applicants urge the Court to exercise its inherent and residual jurisdiction to reopen the matter, review and reconsider its judgment delivered on 11th December 2025 to prevent abuse of process and avoid a miscarriage of justice. Counsel points out that the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules were inadvertently cited in the application as the basis thereof and that the correct provisions invoked should be Section 3 of the Appellate Jurisdiction Act, Section 3 of the Judicature Act, Rule 1(2) of the Court of Appeal Rules 2022, and Articles 50 and 159 of the Constitution of Kenya 2010. 6. It was submitted that after the delivery of the judgment by this Court, the applicants obtained a letter from the Area Chief on 28th January 2026 conrming their long-standing occupation of the suit land; that because occupation and possession were central questions in the dispute, the new https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1906/eng@2026-09-25 2

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evidence comprising of administrative verication is critical material evidence that was previously unavailable in documentary form; that refusal to consider the new evidence will deprive the applicants of their right to fair hearing under Article 50 of the Constitution; that under Article 159(2)(d) of the Constitution, procedural technicalities should not override substantive constitutional rights or perpetuate an injustice; and that the applicants acted without delay in promptly presenting this application after receiving the conrmation letter on 28th January 2026. 7. In support of the proposition that the Court retains narrow residual powers to revisit its decisions when exceptional circumstances demand it, counsel referred to decisions of the Court in Nguruman Limited vs. Shompole Group Ranch & Another (Civil Application 90 of 2013) [2014] KECA 358 (KLR);Standard Chartered Financial Services Limited & Another vs. Manchester Outtters (Suiting Division) Limited (Now known as King Woollen Mills Limited) & 2 Others (Civil Application 224 of 2006) [2016] KECA 671 (KLR); and Benjoh Amalgamated Ltd & Another vs. Kenya Commercial Bank Limited (Civil Application 16 of 2012) [2014] KECA 872 (KLR). 8. As already stated, there was no appearance for the respondents during the hearing of the application. We have also not seen any submissions led on their behalf. Nevertheless, it is incumbent upon an applicant invoking the very narrow jurisdiction of the Court to review its decision, to bring itself within those narrow connes of the Court’s jurisdiction. In its ruling in the case of Benjoh Amalgamated Limited & Another vs. Kenya Commercial Bank (Civil Application 16 of 2012) [2014] KECA 872 (KLR), after extensive review of jurisprudence on the subject, the Court stated: “ 57. 9. The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of nal resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and in doing so the principles to be had regard to are, on the one hand, the nality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the condence of the public in the system of justice. As shown in the various authorities, this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court).” In the same vein, the Court in the case of Standard Chartered Financial Services Limited & Another vs. Manchester Outtters (Suiting Division) Limited (Now known as King Woollen Mills Limited) & 2 others (Civil Application 224 of 2006) [2016] KECA 671 (KLR) stated: “ We reiterate that position and stress that this Court is clothed with residual jurisdiction to reopen and rehear a concluded matter where the interest of justice demands, but that such jurisdiction will only be exercised in exceptional situations where the need to obviate injustice outweighs the principle of nality in litigation.” [Emphasis added] 10. With those principles in mind, the issue that arises for our consideration is whether the applicants have met the threshold for the Court to review its decision. As already noted, the new evidence, which according to the applicants warrant the re- opening of the matter is the letter or statement by the Area Chief which, in their view, attests to the applicants’ occupation and possession for many years. They assert that despite exercise of due diligence on their part, the evidence was not previously available. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1906/eng@2026-09-25 3

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11. Due diligence, as we understand it in the context of litigation would refer to the standard of prudence, reasonable care, and active inquiry expected of a party in legal proceedings. Evidently, litigation in this matter has been ongoing since 2019 when the suits before the ELC appear to have been instituted. There is no evidence whatsoever that the applicants approached the oce of the Chief either before or during the pendency of litigation before the ELC or even after the ELC dismissed their claims, or at any time before this Court heard and determined the appeal to provide the evidence now sought to form the basis of re-opening the matter. 12. The said letter from the Chief is dated 28th January 2026, belatedly sought and obtained for purposes of the present application. There is also no suggestion that the oce of the Chief, Tunyai Location did not exist during the pendency of the litigation before the ELC neither is there an explanation why the applicants did not approach that oce at that time. In that regard, the guiding principles pronounced by the Supreme Court of Kenya in the case of case of Mahamud vs. Mohamad & 3 Others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR) in relation to applications for adduction of additional evidence, apply with necessary modication, to the present application. In that case, the Supreme Court guided, among other things, that in such application, it must be shown that such evidence: “ …could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;” And that, “ …whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;” And further that, “ The Court must be satised that the additional evidence is not utilized for the purpose of removing lacunae and lling gaps in evidence;” And further that, “ A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, ll up omissions or patch up the weak points in his/her case.” 13. That in our view is what the applicants seek to achieve with the present application. Namely, to have the matter remitted back to the ELC for an opportunity to patch up their case. That is not permissible and is not a proper basis for exercising the very narrow review mandate of the Court. 14. The application fails and is hereby dismissed. As the respondents did not participate in the appeal, we make no orders as to costs. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, FCIArb, CArb. …………………………………… JUDGE OF APPEAL H. I. ONG’UDI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1906/eng@2026-09-25 4

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…………………………… JUDGE OF APPEAL MUNYAO SILA …………..………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1906/eng@2026-09-25 5

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