Kimani & another v Meeli & another (Environment and Land Case 108 of 2017) [2025] KEELC 8589 (KLR)

4. The Application is supported by the Afidavit sworn by Peter Mungai Kimani, the 1st Plaintifi/ Applicant, herein sworn on the 24th July 2025. 5. The Application is opposed. There is a Replying Afidavit sworn by the 2nd Defendant/Respondent sworn on the 9th October 2025. 6. There are also grounds of opposition dated 28th October 2025 filed by the 1st and 2nd Defendants. 7. On the 23rd October 2025 the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 8. I have considered the Notice of Motion, the afidavit in support, the responses thereto, the written submissions and the authorities cited. The issue for determination is whether this Application is merited. 9. Order 45 rule 1, 2 of the Civil Procedure Rule provides that; “ (1) (2) 10. 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. 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 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.” In the Judgement delivered on the 14th March 2024 thus Honourable Court observed thus; “ It is the Plaintifis’ case that they purchased Land Registration Number Kajiado/ Lorngusua/109 from Barclays Bank of Kenya Limited through a public auction held on 16th October 2003 for a valuable consideration of Kshs.1,000,000/= as evidenced by copy of the newspaper advertisement of the public auction dated 6th October 2003 marked as P. Exhibit 6, transfer by charge in exercise of power of sale dated 20th January 2004 marked as P. Exhibit 7 and was consequently issued title to the property on 15th April 2004 produced as P. Exhibit 1. However, the 1st and 2nd Defendants had been interfering with the suit property and denied them possession.” 11. In the plaint filed by the Plaintifis are described as joint registered owners of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8589/eng@2025-12-04 2

page 2 of 3

12. The Memorandum of Sale dated 16th October 2003 shows that the suit property was sold to John Duncan Mbichi and Peter Mungai Kimani who were declared purchasers after paying Kshs.1,000,000. There is no evidence to show that the 1st Plaintifi paid more to be entitled to a larger share of the suit property. 13. The transfer of charge in exercise of the Power of Sale dated 20th November 2004, shows that it was to John Duncan Mbichi and Peter Mungai Kimani in equal shares. 14. The title deed issued on 15th April 2004 is in the names of the two plaintifis as joint owners. 15. In the case of National Bank of Kenya Limited v Ndungu Njau the court stated thus; “ A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require any elaborate argument to be established. It will not be a suficient ground for review that another Judge could have taken a difierent view of the matter. Nor can it be a ground for review that the court proceed on an -------- exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 16. Similarly in the case of Otieno Ragot & Company Advocates v National Bank of Kenya Limited (2020) eKLR the Court of Appeal observed as follows; “ Section 80 if the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules gives the court unfettered discretion to make such order as it thinks fit on suficient reason being given for review of its decision. However, as it has been constantly stated this discretion should be exercised judiciously and not capriciously…….” “……The main grounds for review are therefore; discovery of new and important matter or evidence; mistake or error apparent on the face of the record; or for any other suficient reason and most importantly, the application has to be made without unreasonable delay.” I agree with the 2nd Plaintifi’s submissions that the Application does not satisfy the grounds for review. 17. In conclusion I find no merit in this application and the same is dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 4TH DECEMBER 2025. L. KOMINGOI JUDGE In The Presence Of: N/A for the 1st Plaintifi. N/A for the 2nd Plaintifi. Mr. Ngaira for the 1st, 2nd Defendants. N/A for 3rd, 4th Defendants. Court Assistant – Peter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8589/eng@2025-12-04 3

page 3 of 3