Muturi v Hamza

4. The Applicant avers that on 23rd April 2025, this Court delivered a ruling allowing her eviction from the suit property. She contends that this ruling was issued without aording her an opportunity to be heard or to respond to the application dated 12th June 2024. 5. The Applicant attributes her failure to participate in the previous proceedings to an inability to instruct her advocates. She deposes that her counsel could not trace her because she had been unwell, rendering her inaccessible. She further states that there were diculties in the handover process from her previous advocates to the current Advocates. 6. It is the Applicant’s case that the execution of the impugned ruling will cause her irreparable harm. She states she has lived on the property since childhood and faces destitution. Additionally, she argues that the execution will result in the demolition of a mosque that has existed on the property for several years. She prays for the orders to be granted in the interest of justice. 7. The Application is opposed by the Plainti/Respondent, Samuel Kung'u Muturi, through Grounds of Opposition dated 5th November 2025. 8. The Respondent contends that the Application is frivolous, vexatious, and an abuse of the court process. He submits that the matter was fully heard and a judgment was delivered in his favor on 8th June 2022 declaring him the rightful owner of Plot No. 502, Residential Bulbul Trading Centre. 9. The Respondent argues that the ruling of 23rd April 2025 was merely an execution of the subsisting judgment and occasioned no prejudice to the Applicant. He asserts that the application dated 12th June 2024 was duly served upon the Applicant’s counsel, who failed to le a response. The Respondent submits that the Applicant cannot benet from her own indolence or negligence. 10. Furthermore, the Respondent posits that the current application seeks to reopen and re-litigate issues that have been conclusively determined, contrary to the principle of nality in litigation. He characterizes the application as an appeal disguised as a motion for stay and review, arguing that this Court lacks jurisdiction to sit on appeal over its own judgment. Directions 3. The court directed that the application be canvassed by way of written submissions. The parties duly complied and the said submissions have been duly considered in the writing of this ruling. Issues for Determination 3. The main issues falling for determination in this application are: a. Whether the Applicant has satised the criteria for the review and setting aside of the Ruling and Orders of this Court delivered on 23rd April 2025. b. Whether the Applicant is entitled to an order for Stay of Execution of the said orders. c. Who should bear the costs of this application. and Determination 3. The jurisdiction of this Court to review its own orders is given by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Order 45 Rule 1(1) provides that a person aggrieved by a decree or order may apply for review where there is: i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18604/eng@2025-12-18 2

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produced by them at the time the decree was passed or the order made; or ii) Some mistake or error apparent on the face of the record; or iii) Any other sucient reason. 4. The Applicant urges this Court to review its ruling on the ground that she was condemned unheard. She contends that the ruling of 23rd April 2025 was delivered ex-parte because her previous counsel failed to inform her of the proceedings or le a response to the application dated 12th June 2024. She relies on Article 50(2) of the Constitution regarding the right to a fair trial and the decision in Makena v Nalwa [2025] KEHC 1583 (KLR), which reiterates that proceedings should not be conducted to a party's detriment in their absence . 5. Conversely, the Respondent opposes the review, arguing that no new evidence has been discovered and no error exists on the face of the record. The Respondent submits that the Applicant cannot benet from her own indolence or negligence and that the matter had already been concluded by the judgment delivered on 8th June 2022. 6. The essence of the Applicant’s argument is the "mistake of counsel." She avers that her advocates could not trace her to obtain instructions because she was unwell, and there were diculties in the handover from her previous advocates . While the court in Towett v Kibaru & another [2025] KECA 1650 (KLR) held that mistakes of counsel ought not to be visited upon an innocent litigant, this principle is not absolute. It acts as a shield only for the diligent litigant, not the indolent one. 7. I agree with the authority cited by the Respondent, Fuad Mahmoud Mohamed vs. Diamond Trust Bank Kenya Limited & Another (2025) eKLR, where the Supreme Court held that there must be "cogent and credible evidence that the applicant made concerted eorts or due diligence... to pursue his rights". In the instant case, the Applicant admits that her counsel could not trace her. This admission points to a failure on her part to keep in communication with her legal representative. A litigant has a duty to follow up on his/her case. Being "unwell" is a general statement; without specic evidence demonstrating how this illness rendered her completely incommunicado for the duration in question, it does not meet the threshold of "sucient reason" for review. 8. Furthermore, regarding the alleged "error apparent on the face of the record," the record shows that the application dated 12th June 2024 was served upon the Applicant’s counsel, and no response was led. The Court proceeded to make the ruling based on the pleadings before it. As correctly submitted by the Respondent, relying on Paul Mwaniki vs. National Hospital Insurance Fund Board of Management [2020] eKLR, an error must be self-evident and not require elaborate argument. Proceeding to rule on an unopposed application where service is not disputed does not constitute an error on the face of the record. 9. Additionally, the Court notes that the substantive judgment in this matter was delivered on 8th June 2022 in favor of the Plainti. The ruling of 23rd April 2025 was consequential, dealing with the execution (eviction) of that decree. As held in Macharia v Principal Secretary Ministry of Education & another [2025] KEELC 877 (KLR), review cannot be used to reopen a case afresh or to re-litigate issues conclusively determined. The Applicant’s attempt to challenge the eviction order, which ows directly from the 2022 judgment declaring the Plainti the owner, borders on an abuse of the court process. 10. The Applicant seeks a stay of execution, arguing that she will suer substantial loss, including homelessness and the demolition of a mosque . She relies on Order 42 Rule 6 of the Civil Procedure Rules. 11. For a stay to be granted, the Applicant must demonstrate that substantial loss will result. However, the Respondent rightly points out that the judgment declared him the rightful owner and issued a permanent injunction against the Defendant. "Substantial loss" in the context of stay of execution must https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18604/eng@2025-12-18 3

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be a loss that cannot be atoned for by way of damages. This does not denote that a successful party should be kept out of the fruits of their judgment indenitely. 12. Since the Court has found no merit in the prayer to review and set aside the ruling that ordered the eviction, the prayer for stay of execution must inevitably fail. The eviction is a lawful execution of a valid decree of this Court. As submitted by the Respondent, the Applicant’s eviction does not amount to "prejudice" in the legal sense when it is the enforcement of a court's determination on ownership. 13. Section 27 of the Civil Procedure Act provides that costs follow the event. The Applicant has been unsuccessful in this application. The Respondent has been put to the expense of defending an application to reopen a matter that was settled by judgment in 2022. Consequently, the Respondent is entitled to costs. 14. I nd the Notice of Motion dated 5th September 2025 to be devoid of merit. The same is hereby dismissed with costs to the Respondent. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Ms. Akinyi h/b for Mr. Yusuf for the Defendant/Applicant Mr. Odhiambo for the Plainti/Respondent Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18604/eng@2025-12-18 4

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