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now. Further Mr. Wagah Advocate had conrmed he would proceed, I wonder what is this that transpired. In the given circumstances I decline to allow the renewed applications for adjournment. The Respondents should either proceed by calling their witnesses or proceed to close their cases for submissions. After all they have led pleadings and they will have an opportunity to le comprehensive submissions…”. 3. Being aggrieved by the above decision, that the Learned Counsel proceeded to instantly make the impugned application. While the said application was supported by Mr. Wagah Advocate for the 3rd Defendant, it was vigorously opposed by Mr. Birir Advocate for the Plainti. It was as result of this altercation that it compelled the Honourable Court to retire and hence render this Ruling delivered today. II. The Applicant’s Case. 4. During the Micro – Soft Teams Virtual Call over, when the matter was called out, the Plainti’s Counsel informed the Court that this matter which was xed on 22nd July, 2025 he would be ready to proceed for hearing. He had two (2) witnesses and so sought for time allocation. 5. On his part, the Counsel for the 1st & 2nd Defendants applied for adjournment on the ground that he had not been ready to proceed taking that he had not been present when the matter was xed for the hearing. Hence, he had not diarized it. Indeed, according to the Learned Counsel, he only saw it on that days’ Daily Cause Lists. Furthermore, he informed Court that his two witnesses were absent and hence he would not be in a position to participate in the proceedings. He averred that, one of them being a long truck driver was on a journey out of the Court’s jurisdiction. By that time, it is instructive to note that nothing was stated on the second witness. 6. The Learned Counsel for the Plainti vehemently opposed the said application for adjournment. He based his opposition on the ground that on 22nd July, 2025 when the matter was set down for the nal Pre – Trial conference, the Learned Counsel for the 1st & 2nd Defendants was well represented through an Advocate who held his brief. Therefore, today’s date of 5th November, 2025 had been set down through the consensus of all the parties. Mr. Birir Advocate further added that although he had indicated he would be calling two witnesses but on second thoughts and in order not to continue delaying this matter any longer, he was compelled to close the Plainti’s case and hence pave way for the defence case. 7. On his part, Mr. Wagah Advocate for the 3rd Defendant, indicated that he would be ready to proceed with the Defence Case nonetheless. Resultantly, the Honourable Court conrmed the matter for hearing and allocated it time for 11.30am through virtual means with concurrence of all the parties present. Or in the alternative, the Court held that the defence should be ready to close their case either way. However, it was during the actual hearing session through virtual means at 12.30pm that things took a dramatic about turn. All of sudden there seem to a change of heart. It was then that once more that Mr. Kirui Advocate moved Court though an oral application seeking to have the Court review, set aside or vary its earlier decision conrming the matter for Defence hearing. The Learned Counsel submitted that he had found himself in a rather awkward situation as he had not indicated to Court that the 2nd Defendant was unwell. He stated that the wife for the second witness had called him and informed him of his medical condition. She was supposed to be bringing to him the medical documents to that eect. Further, the Counsel averred that he had been of the view that the Plainti was to proceed with https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 2

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the case and the remaining witness before reaching the Defence case thereafter. In other words, the Counsel had not expected the Plainti to abruptly close their case on this material date. He alleged that this state of aairs perpetrated by the Plainti completely destabilized his strategies altogether. 8. To buttress his argument, the Learned Counsel invoked the provision of Sections 80 of Civil Procedure Act Cap. 21 and Order 45 of the Civil Procedure Rule 2010 of the Laws of Kenya. According to him, the application was premised on the following grounds. Firstly, there was sucient cause to have the court consider reviewing having declined to allow the 1st & 2nd Defendants adjournment and that they should either proceed for hearing or close the Defendants case. Once his application was allowed, he would ready and willing to proceed on with the matter with his two witnesses upto its logical conclusion Secondly, the Learned Counsel opined that from the record the 1st & 2nd Defendants had never applied for any adjournment whatsoever. Further, that on 12th June, 2025 the Counsel had been ready to proceed but the matter was taken out at the behest of the Plainti. Thirdly, on the contrary it had always been the Plaintis who had been necessitating adjournments of this matter since its inception. Fourthly, the court should take into consideration that this was a land matter and hence its sensitivity. Therefore to close the case abruptly would make a mockery of the Defences they led which would tantamount to the matter proceeding as a formal proof. Finally, the Defendants had undertaken to produce the medical reports by the 2nd Defendant to proof that indeed he was unwell and hence was not able to attend court as required. In conclusion, he urged the Court to review, set aside and/or vary its orders. The Learned Counsel urged Court to consider and allow his application. 9. On his part, Mr. Wagah Advocate for the 3rd Defendant now seem to bear a change of heart from the earlier position he had taken. He seemingly was in support of Mr. Kirui Advocate’s position. He fully associated himself with the arguments by the Mr. Kirui Advocate. He asserted that it appeared to have been misunderstood by the Court. As a far as he was concerned, when he stated that he would be ready to proceed he had implied that the 3rd Defendant would be ready to be herd with one witness. According to him, that was meant on the day the defence hearing would be scheduled for hearing and was not necessarily this date but another day. 10. To the Counsel, he submitted that it would be noticed that every time the Defence brought their witnesses, the Plaintis matter would never proceed. Hence, they would be always compelled to ask them to go back and await for other dates. Arising from this trajectory or persistent trend of events, the witnesses had gotten fatigued. He asserted that, he had been of the view that there would be three witnesses today and the Plainti’s case would be closed. This being a land matter we urge to be given a chance to ventilate our case accordingly. I sincerely apologize to the court for the inconveniences caused and we be allowed to call our witnesses and close the case. In the nal analysis, the Learned Counsel prayed that the Court to allow oral application by Mr. Kirui Advocate for the 1st and 2nd Defendants. III. The Responses By The Plainti 11. While opposing the oral application, the Learned Counsel for the Plainti contended that the matter of adjournment had been dealt with exhaustively that morning during the Micro – Soft Teams Virtual means. Hence, according to him, it was rather unfair to be re-opening it again and again. He opined that the defence should just close their case on the same breath he had been compelled to close the Plainti’s case on that material day. 12. To him, the excuse advanced by the Learned Counsel – Mr. Wagah to the eect that they could not bring their witnesses as they were gauging it from the Plainti’s case was rather strange in law and should be disregarded. In a nutshell, the Learned Counsel beseeched the Honourable Court not to review, set aside or vary its orders earlier on made that morning. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 3

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Firstly, the Learned Counsels were riding on advantage to my client’s goodness to be granted the adjournment. Secondly, since morning during the virtual call over at 9.00 am to now past midday nothing new had changed – to warrant sucient cause being cited. Mr. Kirui Advocate could have availed the medical documents while Mr. Wagah Advocate would have had his only witness the Land Registrar Kwale physically appear to testify. Thirdly, as the court had correctly observed that this was one of the oldest matters before the court; and hence it ought to be expedited as the court had stated severally. This case was not any exceptions. Further, he had made a quick reference to the cited provisions of the law the application was premised on – the provision of Order 45 of the Civil Procedure Rules, 2010. To him it was not applicable to the matters in issue in this case. It was an irrelevant citation. The application ought to be dismissed all together. They should close their case and refer to the led pleadings as they le their submissions. VI. Analysis & Determination 13. I have keenly assessed the issues raised by the Learned Counsels herein and the provision of the Constitution of Kenya, 2010 and the statures. 14. In order to arrive at an informed decision, I have come up with the following issues. a. Whether the oral application by the Learned Counsel for the 3rd Defendant meets the threshold for review, varying or setting aside the orders by this Honourable Court made on 5th November, 2025? b. Whether the parties are entitled to the reliefs sought. c. Who will bear the costs of the oral application. Issue No. Whether The Oral Application By The Learned Counsel For The 3rd Defendant Meets The Threshold For Review, Varying Or Setting Aside The Orders By This Honourable Court Made on 5th November, 2025? 15. Under this sub - title, the Court will be examining whether the oral application by the 1st, 2nd and 3rd Defendants to cause the review, vary or setting aside its orders do have any merit or not. The power of review in the High Court is anchored in the Civil Procedure Act, Cap. 21 of the Laws of Kenya and the Civil Procedure Rules, 2010.The provision of Section 80 of the Civil Procedure Act, Cap. 21 provides as follows: Any person who considers himself aggrieved— 16. (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 t. He provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010 further provides for review in the following manner: Any person considering himself aggrieved— https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 4

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17. (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 sucient 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. It will be noted that Courts have severally dealt with the issue of review. Thus, there will be no need to re – invent the wheel here. The Supreme Court in “Application No 8 of 2017, Parliamentary Service Commission – versus - Martin Nyaga Wambora & others [2018] eKLR”, quoted with approval the ndings of the East Africa Court of Appeal in “Mbogo and another – versus - Shah [1968] EA”, upon establishing the following principles: (31) 18. Consequently, drawing from the case law above, particularly Mbogo and Another – versus Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows: i. A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this Court. ii. Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court; iii. An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application. iv. In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically. v. During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review. vi. The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and: a. as a result, a wrong decision was arrived at; or b. it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice. The Court of Appeal in the case of:- “Civil Appeal No 2111 of 1996, National Bank of Kenya – versus - Ndungu Njau” observed as follows in respect of reviews applications: “ 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 an elaborate argument to be established. It will not be sucient ground for review that another Judge could have taken a dierent view of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 5

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matter nor can it be a ground for review that the court proceeds on an incorrect expansion of the law”. 19. The import of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was considered by the High Court in “Miscellaneous Application 317 of 2018, Republic – versus - Advocates Disciplinary Tribunal Ex - Parte Apollo Mboya [2019] eKLR”. Upon considering comparative jurisprudence, the Court crystallized the principles for consideration in reviewing its own decisions as follows: i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression ‘any other sucient reason’ appearing in Order 45 Rule 1 has to be interpreted in the light of other specied grounds. iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/ judgment of a coordinate or larger Bench of the tribunal or of a superior court. vi. While considering an application for review, the court must conne its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/ decision as vitiated by an error apparent. vii. Mere discovery of new or important matter or evidence is not sucient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/ tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record. ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. Issue No. b). Whether The Parties Are Entitled To The Reliefs Sought. 20. Under this Sub – heading the Honourable Court will consider whether the oral application by the Learned Counsel for the 1st and 2nd Defendants has any merit or not. As already deliberated above, the issues germinating the making of this application are rather straight forward. It is purely revolving the now very common trend of Counsel seeking for adjournment of matters already xed for hearing. This https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 6

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Court loathes adjournment at all costs unless based on unavoidable circumstances. These includes on account of ill – health conditions, bereavement or other related compassionate reasons. Clearly, and as has been stated the umpteenth times, adjournment of cases have severe eect to the administration of Justice in Kenya. They increase back – log of cases and erode the public condence and trust. 21. From the record, this suit was led through a Plaint dated 10th September, 2020 against the 1st, 2nd and 3rd Defendants herein. That is close to ve (5 ) years down the line. Upon service with the Summons to Enter appearance, the Defendants led their Statement of defence refuting the claims made against them. 22. The Plainti sought for the for a declaration that he is the legal and absolute proprietor of all that suit land known as Land reference Kwale/Shimoni/488 measuring 2.8Hectares (Hereinafter referred to as “The Suit land”). Further, that all the transfers and registration of the said suit property to the 1st Defendant were done through fraudulent means. 23. From the court’s record, the matter had appeared in Court on diverse dates being 25th February, 2021, 8th June, 2021, 21st September, 2021, 30th September, 2021, 21st October, 2021 mainly dealing with issues of interlocutory applications. It was until 1st March, 2022, 18th May, 2022, 23rd September, 2022. 27th March, 20233rd May, 2023, 8th June, 2023, 9th November, 2023, 14th February, 2024, 24th October, 2024, 22nd January, 2025. 5th February, 2025, 12th February, 2025, 27th June, 2025 and 5th November, 2025. During all these period the matter had been marred with several applications for adjournments. It is unacceptable that only the Plainti’s hearing commenced with the Plainti Witness – 1 testifying on 1st December, 2021. 24. Today’s hearing was xed in the presence of all parties. With all due respect to the Counsels for the Defendants, I strongly discern that their arguments are all an afterthought and full of lame excuses. The Black Law Dictionary denes “hearing” – to mean:“ A judicial session, usually open to the public, held for purposes of deciding issues of fact or of law, sometimes with witnesses testifying …” During the hearing both documentary and oral evidence by all parties is adduced. It is expected that the session is for both the Plaintis (or Petitioners or Applicants or Claimants as the a case may be) and the Defendants (or Respondents or Objectors). Thus, the argument propelled by the Defendants herein that they hearing was meant for the Plaintis case alone is completely misplaced and unfounded. 25. After all the purpose of conducting the Pre – Trial conference and case management under the provision of Order 11 of the Civil Procedure Rules, 2010 was essentially to ensure come the hearing date, no parties should seek for adjournment. 26. Be that as it may, the only strong argument projected by the Counsels for the Defendants was that this a land matter and which bears high emotiveness and sensitivities in Kenya. Land is a source of livelihood. Therefore, it would be unfair, unjust and unreasonable to send the parties away from the temple and seat of justice without according them fair hearing as envisaged under the provisions of Article 25 ( c ); 50 ( 1 ) and ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitutions of Kenya, 2010; Sections 3 and 13 of the Environment & Land Act, 2010. 27. Based on this very reason, I will be compelled to allow the oral application and the orders sought thereof but upon fullment of certain conditions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 7

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Issue No. c). Who Will Bear The Costs Of The Application. 28. It is now well established that issues of costs are at the discretion of the Court. Costs mean the award a party is granted at the conclusion of legal action or proceedings of any litigation. 29. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By the events it means the result of the legal action. 30. In the instant application, though the oral application by the 1st and 2nd Defendants and supported by the 3rd Defendants has narrowly succeeded, its reasonable that they be made to meet some thrown away costs to the Plaintis and the Court for occasioning the adjournment for the 5th November, 2025. VII. Conclusion & Findings 31. Consequently, upon hearing all the submissions by the Counsels and making an analysis of the issues herein, the Honourable Court proceeds to make the following orders:a. That oral application by the 1st & 2nd Defendants be and is hereby allowed upon fullment of the following Pre – Conditions that:i. To pay the Plaintis Advocates thrown away costs of Kenya Shillings Ten Thousand (Kshs. 10, 000.00/=) by the 1st & 2nd Defendants for the 5th November, 2025 Within The Next 7 days from this date. ii. The 1st, 2nd and 3rd Defendants to pay a sum of Kenya Shillings Two Thousand (Kshs. 2, 000.00) as Court Adjournment fees (CAF) for the 5th November, 2025. iii. The 2nd Defendant to produce the medical report within the next three (3) days as proof that he had been unwell on 5th November, 2025. iv. This to be marked as the Last Adjournment for this matter. b. That in default of any of the above pre – conditions, the oral application by the 1st & 2nd Defendants to automatically stand dismissed and parties. c. That matter be xed for Defence hearing on 15th June, 2026 and whereupon all the witnesses for the 1st, 2nd & 3rd Defendants to be made available on the material day. It is so ordered accordingly RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED ON 8TH DAY OF DECEMBER, 2025. …………………………………… HON. MR. JUSTICE LL NAIKUNI ENVIRONMENT & LAND COURT AT KWALE Ruling delivered in the presence of: Mr. Daniel Disii, the Court Assistant. Mr. Birir Advocate for the Plaintis. Mr. Kirui Advocate for the 1st & 2nd Defendants. Mr. Wagah Advocate for the 3rd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18644/eng@2025-12-08 8

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