Murunga & another v Shikhutuli (Environment and Land Case E001 of 2023) [2025] KEELC 7301 (KLR)

Murunga Kisosi a fact confirmed by the Succession Court in Kakamega HC Succession Cause No. E026 of 2022. That despite the said judgment the respondent has graciously allowed the applicant to use a portion of the suit property pending the determination of this suit. 4. That as orders sought to be reviewed were made pursuant to a consent, the instant application does not meet the threshold for review under Order 45 of the Civil Procedure Rules. 5. The court has duly considered the application and the response thereto. The only issue that arise for determination is whether the applicant has met the threshold for grant of orders of review. 6. The power to grant review is provided for in section 80 of the Civil Procedure Act and the conditions upon which review can be granted are in Order 45 Rule 1. The said provisions state as follows; Section 80 of the Civil Procedure Act provides as follows; “ Any person who considers himself aggrieved— (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 of the Civil Procedure Rules, provides as follows: “ (1) Any person considering himself aggrieved— (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 judgment to the court which passed the decree or made the order without unreasonable delay. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7301/eng@2025-10-15 2

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to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 7. Therefore, while section 80 of the Civil Procedure Act grants the court the jurisdiction to grant review while Order 45 of the Civil Procedure Rules sets out the rules that restrict the grounds for review to; a. Discovery of 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 made or; b. On account of some mistake or error apparent on the face of the record, or c. For any other suficient reason; and whatever the ground of the application, there is a requirement that the same has to be made without unreasonable delay. 8. In the instant case, the basis for the prayer for review as indicated by the applicant, is that the applicant is a farmer and relies on farming as his sole sustenance and that he has maize and sugarcane on the suit property which need to be weeded, tended and maintained. The applicant never provided evidence of the allegation that there was maize and sugarcane on the suit property as no supporting afidavit was filed to support the application. 9. The applicant has not told court that at the time of the order, he was not aware that he is a farmer using the suit property for maize farming and that there was a crop on the suit property that needed weeding and tending. He has also not shown any error apparent on the face of the record that needs rectification. Further, no suficient cause has been shown, requiring the court’s intervention by review. Therefore, none of the elements for review has been demonstrated by the applicant. Besides, the order of 20/02/2025 was made by consent of both counsel. It is trite that a consent order is a contract and unless fraud, misrepresentation, duress or undue infiuence is demonstrated, the same cannot be set aside. In the instant case, none of the elements for setting aside a consent order has been established by the applicant. 10. The upshot is that I find no merit in the application dated 20th March 2025, which I dismiss with costs to the plaintifis/respondents. 11. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 15TH DAY OF OCTOBER, 2025 A. NYUKURI JUDGE In the presence of; Mr. Khayumbi for the plaintifi/respondent Mr. Shiloya for the defendant/ applicant Court Assistant: Delphine. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7301/eng@2025-10-15 3

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