Marwa v Mahegere & 5 others (Environment and Land Case 380 of 2017) [2025] KEELC 6517 (KLR)

f. Spent g. Spent h. That this Honourable Court be pleased to set aside the ex-parte proceedings made on 4th February, 2022 to close the defence case and the ex-parte judgment dated 19th October, 2022 and the Decree issued by this Honourable Court on 25th November, 2022 together with the Order made on 23rd day of October, 2023 and all other consequential orders made therein. i. That this Honourable Court be pleased to reinstate the Defendants/ Applicants defence case for inter-partes hearing. j. That this Honourable Court be pleased to grant to the defendants/applicants an opportunity and/or leave to present and prosecute the defence case herein. k. Such further and/or other orders be made as the court may deem fit and expedient. l. Costs of this application be in the cause. 2. The application is based on the 15 grounds thereof and the Supporting Afidavit sworn by the 2nd defendant/applicant, on 27.10.2023, on his own behalf and on behalf of his co-defendants. 3. The Applicant avers that the instant suit was consolidated with ELC Case No. 802 of 2017 formerly Kisii ELC Case No. 10 of 2013, and which is still pending before this court. He contends that the plaintifi/respondent failed to disclose the said fact to the court. 4. It is his claim that he was never informed of the hearing date by his former advocate neither does he know one Advocate Apondi, who attended court during the hearing of the plaintifi’s case. That he was therefore not aware of the hearing date. 5. That he was shocked to discover that the matter proceeded, an ex-parte judgment was delivered on 19/10/2022 and a Decree issued on 25/11/2022. 6. It is his contention that they were never served with the Application dated 05.10.2023, any Notice of Entry of Judgment and /or Decree and/or a Notice to Show Cause. That they never received any communication from the firm of M/S Nyagesoa until 24.10.2023 when they found out that the application dated 05/10/2023 was allowed. 7. He maintained that he had never received any communication from the firm of M/S Nyagesoa concerning this case and hence the failure to attend court was not intentional. 8. It is further his claim that the defendants/applicants are all staying on the suit land together with their families, that they solely depend on the suit land for their livelihood and have been in occupation of the said land for a period of over 50 years. 9. He added that the judgment and decree of this court is not enforceable since there are other parties who are staying on the suit land and who are not parties in the instant case. 10. It is his argument that the constitution provides that a party should not be condemned unheard. That they have a defence which raises triable issues and thus seeks to be granted an opportunity to present and ventilate their defence. 11. In conclusion, he maintained that the mistakes of an advocate should not be visited upon an innocent litigant and urged the court to grant the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6517/eng@2025-08-01 2

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12. The application was opposed, the plaintifi/respondent filed a Replying Afidavit dated and sworn on 15.01.2024. He dismissed the application as being vexatious, frivolous, lacking in merit, incompetent, made in bad faith with no suficient or legal basis, merely intention to frustrate him. 13. It was his contention that there were no ex-parte proceedings on the 4.02.2022 as alleged by the applicants since on the said date their then advocate on record, Mr. Nyagesoa, instructed Ms. Apondi, who held his brief and fully participated in the proceedings and even cross-examined him. 14. He further added that upon close of the plaintifi’s case, Ms. Apondi who was holding brief for Mr. Nyagesoa, closed the defence case pursuant to the instructions from applicants’ advocate on record. 15. He thus maintained that the applicants were fully represented and participated in the proceedings through Ms. Apondi who was acting on instructions of their then advocate on record, Mr. Nyagesoa. He thus urged the court to dismiss the application with costs and in the event that the court deems fit to grant the orders sought, then the applicants should be compelled to pay him throw-away costs. 16. The application was canvassed by way of written submissions; the applicants filed their submissions dated 22.11.2023 together with authorities while the respondent filed his submissions dated 15.01.2024 together with authorities, which I have read and duly considered in arriving at my decision as hereunder; Analysis And Determination 17. I have reviewed the pleadings herein, the respective documents and submissions in totality and it is my considered opinion that the following sole issue arises for determination: - I. whether the applicant has met the standard to warrant the review and/or setting aside of the Ruling delivered on 3rd October, 2023; 18. The grounds for review and/or setting aside of an order of the court are now well settled. The court in determining whether or not to grant such orders ought to exercise such discretionary powers judiciously taking into account the circumstances of each case. 19. Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules outline the statutory provisions for the grant of orders of review. While section 80 empowers the court to make orders for review, Order 45 Rule 1 sets out the jurisdiction and scope of review by underpinning review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other suficient reason. 20. Section 80 of the Civil Procedure Act states as follows: Any person who considers himself aggrieved— 21. (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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Order 45 rule 1 on the other hand provides as follows: “ Any person considering himself aggrieved: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6517/eng@2025-08-01 3

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22. 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 suficient reason, desires to obtain a review of the decree or order, may apply for a review of judgement to the court which passed the decree or made the order without unreasonable delay.” The Court of Appeal in the case of Sanitam Services (E.A.) Limited V Rentokil (K) Limited & Another (2019) eKLR, held that:“ Jurisdiction to review a judgment or order of a court is donated by Section 80 of the Civil Procedure Act and Order 45 Civil Procedure Rules. By those provisions of law any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or is aggrieved by a decree or order by which no appeal is 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 suficient reason – a person who fits within those categories may apply for a review of judgment or to the court which passed the decree or made the order and this should be done without unreasonable delay”. 23. An order for review and/or setting aside is discretionary in nature and as stated hereinabove, such discretion ought not to be exercised in favour of an undeserving party. The question that follows is whether the applicant has satisfactorily proved the principles that govern the grant of orders of review of a court order to the required threshold. 24. The applicant’s grounds herein for setting aside the judgment issued by this court on 3rd October 2023 is based on the claim that their advocate on record at the time did not inform them about the hearing date and further that they were not aware or they did not know the counsel who was holding their advocates brief on the hearing date. 25. In the case of Uhuru Highway Development Ltd Vs Central Bank of Kenya & others (2002) 1 EA 294, the court held that a client is bound by the advocate’s actions unless fraud or want of authority is proven. The court further stated that “a mistake or negligence by counsel is not a suficient ground for setting aside a judgment unless it is shown that the client was not aware of the mistake and that injustice would be occasioned”. 26. Kimaru J. was faced with a similar conundrum in the case of Savings and Loans Limited Vs Susan Wanjiru Muritu Nairobi (Milimani) HCCC No. 397 of 2002 (U.R) and expressed himself as follows: “ Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, 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 Court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6517/eng@2025-08-01 4

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failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintifi’s determination to execute the decree issued in its favour is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant.” 27. The court also in the case of Tana & Athi River Development Authority Vs Jeremiah Kimigho Mwakio (2015) Eklr held that “once party instructs counsel, they are taken to have surrendered control of the case to their advocate. They cannot therefore disown the advocate’s actions done with apparent authority”. 28. It has been held in numerous cases that an advocate’s mistake cannot always be used as a scapegoat; the case belongs to the litigant”. 29. On the issue of the ground that the advocate holding brief was not instructed by the applicants is not valid. The court held in the case of Kenya Commercial Bank Ltd Vs Engineering Co. Ltd HCCC No. 130 of 2001 that “ An advocate who holds brief has full authority to act as if they were the instructed counsel, and the client is bound by their actions, including entry of a consent unless disowned promptly”. 30. I have carefully considered the grounds outlined in the application and the allegations made in the supporting afidavit; and it is the finding of this court that the applicant has not demonstrated any suficient reason to warrant the review of the orders of this court issued on 3/10/2023. Conclusion 31. In view of the foregoing, I accordingly find that the Application dated 27th October, 2023 is not merited and is hereby dismissed with costs. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 1ST DAY OF AUGUST, 2025. MOHAMED N. KULLOW JUDGE In presence of; for the Plaintifi for the Defendant Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6517/eng@2025-08-01 5

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