Muriithi v Nyeri County Land Registrar

2. That it is misleading for the Applicant to state that the Ruling was made in the absence of crucial documents and he thereafter attaches a sale Agreement, Lease, Ocial Search and gazette notice; 3. That the documents attached with diligence ought to have been adduced in court during the trial. The omission was due to a lack of diligence and thus this court should not allow the Applicant to re-try the matter. 5. I have carefully perused and considered application and the response thereto. I have similarly perused the submissions and authorities placed before me by the Learned Counsels representing the parties herein. 6. By the Notice of Motion before the court, the Applicant urges the court of be pleased to set aside and appropriately review the ruling and the orders made herein on 19th January 2024. It is the Applicant’s case that the Ruling was made in the absence of crucial documents that had not been availed at the time of making the Ruling. The Applicant avers that the failure to present the said documents was due to inadvertence, and a honest and technical problem that arose at the oces of the Applicant’s Advocates on record. 7. The Nyeri County Land registrar (the Respondent) is opposed to the review application. It is the respondent’s case that the documents attached to the Applicant’s application ought to have been adduced in court with diligence and that the omission was due to lack of diligence on the Applicant’s part. The respondent asserts that the Applicant is merely trying to use this present application to reopen the case to correct the mistakes made during the trial and to seal the holes they discovered after the Ruling. 8. In matters of review, section 80 of the Civil Procedure Act provides as follows:“ Any person who considers himself aggrieved- 9. 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 t.” On the other hand, Order 45 Rule 1 (1) of the Civil Procedure Rules, 2010 sets out the grounds for review and provides as follows:“ 1) Any person considering himself aggrieveda) 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 of 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 sucient reason, desires to obtain a review of the decree or https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13932/eng@2024-12-20 2

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order, may apply for a review of the Judgment to the court which passed the decree or made the order without unreasonable delay.” 10. 11. 12. Arising from the foregoing, it is evident that a decision to review a Judgment or order is allowed on the following grounds where the application is made without delay:a) discovery of a new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order was made; b) On account of some mistake or error apparent on the face of the record; and c) For any other sucient reason; In the matter before me, the Applicant pleads for a review of the Ruling delivered herein on 19th January 2024 on the grounds that there was an omission of crucial documents in the application presented to the court due to a mistake that occurred in the oce of the Advocates on record. At paragraphs 9 to 12 of the Adavit led in support, Mr. James N. Nderi, Learned Counsel for the Applicant depones as follows:“ 9. That I was taken aback by the ruling and order of 19/1/2024 when the court pointed glaring omissions in the application and I had to step back to realize that what I presented for ling was not the nal and approved draft. 10. That when I went back to my machine, I found the entire application as I had done but what was in our server is what had been presented for ling. Annexed and marked “A” is the entire copy of the nal draft of the application together with the adavit and the annextures that ought to have been presented; 11. That I personally take responsibility for this mishap and regret that I had over trusted my instincts in presenting an incomplete application before court as I seek it to entreat me in accommodating the review; and 12. That there is little or no prejudice likely to be occasioned by the orders sought which cannot be compensated by way of costs. The question that then comes to mind is whether the omission of crucial documents and the ling of a draft, incomplete application falls within the parameters allowed to warrant a review of a decree or order. As was stated in Otieno Ragot & Company Advocates –vs- National Bank of Kenya Limited (2020) eKLR: “ Order 45 Rule 1 does not excuse every error or mistake, even if inadvertent. It excuses those mistakes and allows a party to introduce documents which it could not lay its hands on even after the exercise of due diligence. There was no response to the replying adavit in so far as it accused the respondent of lack of diligence. The discretion of the law to grant an order of review cannot be used to help a party who has shown lack of diligence…….. It was quite clear therefore that the respondent having found out why the Judge decided against it went back to the drawing board and shed out evidence that would bolster its case. This was too late in the day as the horse had already bolted from the stable.” 13. In the matter before the court, the documents which are said not to have been led are a survey map, completion documents, and copies of receipts, a copy of a search certicate and a copy of Kenya Gazette notice. While it is undeniable that those are documents were crucial to the Applicant’s case, their https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13932/eng@2024-12-20 3

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omission cannot amount to a discovery of a new and important matter of evidence which was not within the knowledge of the Applicant at the time of ling of the application. That omission cannot amount to a mistake or error apparent on the face of the record to warrant a review of the court’s Ruling. 14. As was stated by W. Korir J (as he then was) in Saham Assurance Co. Ltd –vs- Shimoli (Civil Suit No. 2 of 2018 [2022] KEHC 14372 (KLR): “ The Applicant has not established any ground for re-opening the case. It has not demonstrated any error or mistake on the face of the record. The record here means the court record. There is no mistake on the part of the court to warrant a review of the Judgment….” 15. Indeed while the Applicant emphasizes that the inclusion of the said documents would suce for the court to review its decision made on 19th January 2024 and to arrive at a dierent nding, it was evident to me from my perusal of he said Ruling that there were other issues including the omission to enjoin the alleged vendor of the suit property to these proceedings that had led to the dismissal of the earlier application. 16. In the premises, I did not nd merit in the Motion dated 7th February 2024. The same is dismissed with costs. DATED, SIGNED AND DELIVERED AT NYERI THIS FRIDAY 20TH DAY OF DECEMBER, 2024. In the presence of: No appearance for the Applicant. No appearance for the Respondent. Court Assistant: Kendi. ………………… J. O. OLOLA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13932/eng@2024-12-20 4

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