Mugekenyi

RULING 1. Before this Court for determination are two Notice of Motion Applications dated 22/07/2022 and 15/08/2022 respectively. 2. The Notice of Motion Application dated 22/07/2022 is led by the 6th Defendant and is expressed to be brought under Section 1A, 3A, 63(e) of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, Articles 50 (1) & 159 of the Constitution and all enabling laws. Seeking the following orders:a. Spent. b. That there be a conservatory order staying the execution of the Decree issued herein on 8th April 2020 pending the hearing and determination of this Application. c. That the Court does declare the hearing herein and the determination made in the Judgment delivered on 8th April 2020 to be a mistrial. d. That the testimonies taken from all the witnesses, the proceedings relation the hearing and the Judgment delivered on 8th April 2020 be reviewed and set aside. e. That there be an order that the trial do take place de novo. f. That the costs of this Application be provided for. 3. This Application is unopposed and the Applicant has gone ahead and led their submissions. 4. It is trite that even when an Application is unopposed, a Court still has a duty to examine its merits and ensure it is legally sound before granting any orders. The Court must be satised that the Application is meritorious and that the requested orders are justied based on the law and the facts presented. This duty ensures that justice is served impartially and that unopposed Applications are not automatically granted without proper scrutiny. 5. The Notice of Motion Application dated 15/08/2022 is led by the Plainti/ Applicant and is expressed to be brought under Section 3A and 80 of the Civil Procedure Act, Order 9 (Rules 9 and 10) 45 and 51 of the Civil Procedure Rules 2010 and all other enabling provisions of the law, seeking the following orders:1. That the rm of Wangui Kamande & Co. Advocates do formally come on record as Advocates for the Plainti/Applicant herein in place of Kinyua Njogu & Co. Advocates. 2. That the Notice of Change of Advocates annexed herein be deemed as duly led and served. 3. That the Honorable Court be pleased to review and/or vary its Judgment dated 8th April 2020. 4. That upon review this Court sets aside the decree thereto and substitute it with an appropriate decree that conforms with said review 5. That the Honorable Court be pleased to rectify the title numbers erroneously captured in the rst page of the Judgment specically: a. LR Lari/Kirenga/17899 to be properly captured as LR Lari/Kirenga/1786. b. LR Lari/Kirenga/1811 to be properly captured as LR Lari/Kirenga/1821. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 2

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6. That the Honorable Court be pleased to include LR Lari/Kirenga/1817 in the rst order sought in the rst page of the Judgment. 7. That the rst order sought as captured in the rst page of the Judgment read:1. THAT the Land Registrar in respect of L.R Lari/Kirenga/671 (now closed and illegally opened into LR Lari/Kirenga/1786, 1822, 1784, 1820, 1821, 1817, 1818 and 1819) be rectied and the said subdivisions be cancelled and the said land be recombined into the original LR Lari/Kirenga/671, and be registered into the name of the deceased Mbugua Mugekenyi. 8. That this Court makes such further orders as it may deem t and just in the circumstance of the case. 9. That the costs of this Application be provided for. 6. The Application is based on the grounds on the face of it and the Supporting Adavit of Mary Wachuka Wachira sworn on even date. The 6th Defendant avers that the suit was initiated by way of an Originating Summons and related to the determination of whether there is a trust in respect of LR No. Lari/Kirenga/671 and whether the subdivisions of LR No. Lari/Kirenga/671 into among others including LR No. Lari/Kirenga/1821 registered in the 6th Defendant’s name ought to be cancelled. 7. She avers to have lived on the suit property for 22 years since 1998 and that the Originating Summons was heard and a Judgment delivered on 8/04/2020 in favour of the Plainti’s Estate but the original Plainti one; John George Mugekenyi died on 8/02/2015 and his co-administrator Peter Ndungu Mbugua had died 5 years earlier on 20/07/2010. That the trial took place on the fact that the original Plainti herein John George Mugekenyi was substituted with one Ng’ang’a Mwongeri who was said to be administrator of the former’s estate and so the trial was based on this substitution. 8. That the said Ng’ang’a it has emerged was an imposter and a stranger to the Estate of John George Mugekenyi and this information was not known to the 6th Defendant and all the parties at the time of the trial. Thus the rm of Rakoro Advocates and the Estate of the late Ng’ang’a Mwongeri (now deceased) did not contest the allegation of being imposters after the dependents’ of the estate of Mbugua Mugekenyi led the Application dated 9/02/2022 that sought the substitution of Ng’ang’a Mwongeri with Keziah Wambui Njihia and Mary Wanjira Maina. A copy of the Application is annexed as ‘MWW1’ and she avers that both Keziah Wambui Njihia and Mary Wanjira Maina the family of the estate of Mbugua Mugekenyi disowned Ng’ang’a Mwongeri and the rm of Rakoro & Co Advocates. 9. That the trial was thus an error and the proceedings led to a mistrial and in the interest of justice the trial proceedings and the Judgment should be set aside and the trial to be conducted by the rightful parties. 10. I have scanned and gone through the CTS and the Court le and noted that this particular Application is opposed vide Replying Adavit by the 6th Respondent dated 7/10/2022. In opposing the Notice of Motion Application the 6th Defendant avers that the Application was a duplication of yet another Application and that it is caught up by laches. 11. It is the 6th Defendant’s averment that since she has sought the Court’s order to declare the suit that led to the Judgment of 8/4/2020 a mistrial, then the Notice of Motion dated 15/08/2022 is obsolete. 12. The Court gave directions for parties to le submissions and the same have been considered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 3

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Analysis and Determination 13. The Court has carefully considered the Applications as well as the parties’ Adavits and submissions for and against the Applications. In my humble view, the main issues for determination are whether this Court should proceed to set aside and/or review the proceedings that led to the Judgment dated 08/04/2020 and whether the Court should grant the prayer for Change of Advocates made by the Plainti/Applicant. 14. The parameters under which an Application for review ought to be considered and evaluated were expounded, highlighted and elaborated upon in the case of Republic versus Advocates Disciplinary Tribunal Exparte Apollo Mboya [2019] eKLR, where the Court held thus; “ 30. The principles which can be culled out from the above noted authorities are: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 along 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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 4

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15. 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.” Furthermore, the threshold to be met and established before an Applicant can partake of an order of review premised and anchored on discovery of new and important evidence, was also elucidated by the Court of Appeal in the case of Stephen Gathua Kimani versus Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] eKLR, where the Court stated and observed as hereunder; In the end, the Learned Judge stated: “ In the present case, guided by the facts of this case, the authorities cited herein and the relevant provisions of the law, I humbly nd that the Applicant has not demonstrated that there has been discovery of new and important matter or evidence which after due diligence was not within his knowledge or could not be produced at that time nor has he shown that there is some mistake or error apparent on the face of the record nor has he proved that there as already stated the Application for review was not made without unreasonable delay. The upshot is that my answers to number one is in the negative.” We too are of a similar view and it is in view of this that we nd, albeit with sympathy, that this appeal has no merit. It is hereby dismissed with costs to the Respondent. 16. Even though the Application is not opposed, In the Supreme Court of Kenya case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR, the Court stated that; “ As a Court of Law, we have a duty in principle to look at what the Application is about and what it seeks. It is not automatic that for any unopposed Application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satised that prima facie, with no objection, the Application is meritorious and the prayers may be granted.” 17. Thus this Court has a duty to look into the merits of the current Application, even if the same is unopposed. 18. In the Judgment delivered on 08/04/2020 the Court held as follows:“ Consequently, the Court enters Judgment for the Plainti against the 4th, 5th, 6th, 7th, 8th 10th & 11th Defendants in terms of prayers No. 1 and 2. The import of the above holding is that all the resultant subdivisions that resulted from subdivisions of LR No. Lari/Kirenga/671, be and are hereby cancelled and the said land held by the 1st, 2nd and 3rd Defendants who are found to be Bonade purchasers for value without notice. Thereafter the recombined land https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 5

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can be distributed through Succession Cause wherein the Plainti will get his share during the distribution of the Estate in accordance with the trust.” 19. The Court in the same decision found that Mbugua Mugekenyi held the suit property in trust for his brother John George Mugekenyi. I have also considered the Amended Originating Summons dated 1/02/2011 and noted that the rst order sought reads as follows: “ That the land Register in respect of LR Lari/Kirenga/671 (now closed and illegally opened into LR Lari/Kirenga 1786, 1822, 1784, 1820, 1811, 1818 and 1819 be rectied and the said subdivisions canceled and the said land be recombined into the name of the deceased Mbugua Mugekenyi.” 20. Both Applicants have sought for a review/and or setting aside of the Court orders. I will therefore address the issue of review rst. For a Court to review its own orders, it must be demonstrated that there is discovery of new and important matter or evidence. It must also be shown that the new evidence was not within the knowledge of the party seeking review or could not be produced at the time the orders were made. Such party must also satisfy the Court that this was the case even after exercise of due diligence. A Court will also review its orders if it is demonstrated that there is some mistake or error apparent on the face of the record, or for any other sucient reason. The error must be evident on the face of the record and should not require much labour in explanation. An Application for review must also be made without unreasonable delay. 21. From the above provisions of Section 80 the Court has power of review and Order 45 sets the rules for review as was held in the case of Republic v Public Procurement Administrative Review Board & 2 Others [2018] eKLR (supra):“ The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (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 sucient reason and whatever the ground there is a requirement that the Application has to be made without un reasonable delay.” 22. Further in the case of Evan Bwire V Andrew Aginda Civil Appeal No. 147 of 2006 cited in the case of Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR the Court of Appeal held as follows: “ An Application for review will only be allowed on strong grounds particularly if its eect will amount to re-opening the Application or case afresh. In other words, I nd no material before me to demonstrate that the Applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.” 23. The grounds being raised in the two Applications for review do not amount to new evidence which the Applicants could not get even after exercising due diligence. The parties were all present when the matter was heard and the Judgment dated 08/04/2020. For the Intended 1st and 2nd substitutes they were ably represented through the deceased Plainti John George Mugekenyi. It therefore follows that there was no mistrial to warrant this suit being heard de novo since Keziah Wambui Njihia and Mary Wanjira Maina 1st intended substitute/Respondent and 2nd intended Substitute/Respondent were being substituted upon the death of one John George Mugekenyi. The rest of the Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 6

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were parties to the suit upto and including when the Judgment was delivered. What remained was the implementation of the Judgement by the parties. 24. For me, I see this as an afterthought to derail the implementation of the Court order. The Application for review is a disguise to appeal indirectly which is an abuse of the Court process. 25. In the case of Origo & Another V Mungala (2005) 2KLR cited in Jameny Mudaki Asava V Brown Otengo Asava & Another (2015) eKLR the Court held as follows: “ Our parting shot is that an erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal, they were proceeding in the wrong direction. They have now come to a dead end.” 26. On the issue as to whether the Court should grant the prayer for Change of Advocates as per the Notice of Motion dated 15/08/2022 the Court will rely on Order 9 Rule 5 of the Civil Procedure which states as follows: “ A party suing or defending by an Advocate shall be at liberty to change his Advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of Advocate is led in the Court in which such cause or matter is proceeding and served in accordance with rule 6, the former Advocate shall, subject to rules 12 and 13 be considered the Advocate of the party until the nal conclusion of the cause or matter, including any review or appeal.” 27. 28. Order 9 Rule 9 of the Civil Procedure Rules states that when there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after Judgment has been passed, such change or intention to act in person shall not be eected by order of the Court“ (a) upon an Application with notice to all the parties; or (b) upon a consent led between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.” Order 9, rule 10 of the Civil Procedure provides; “ An Application under rule 9 may be combined with other prayers provided the question of change of Advocate or party intending to act in person shall be determined rst.” 29. Therefore given the above provision of Order 9 Rule 9, the correct procedure that was to be followed in the present case where Judgment had been delivered was that Counsel coming on record ought to have sought leave of the Court to come on record, then le and serve the Notice of Change of Advocates before ling the Application to stay the execution of the orders of the Court. 30. The Court of Appeal in the case of Tobias M. Wafubwa v Ben Butali [2017] eKLR held that; “ Once a Judgment is entered, save for matters such as Applications for review or execution or stay of execution inter alia, an appeal to an appellate Court is not a continuation of proceedings in the lower Court, but a commencement of new proceedings in another Court, … Parties should therefore have the right to choose whether to remain with the same Counsel or to engage other Counsel on appeal without being required to le a Notice of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 7

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Change of Advocates or to obtain leave from the concerned Court to be placed on record in substitution of the previous Advocate.” 31. The provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after Judgment has been entered to be eected, then there must be an order of the Court upon an Application with notice to all parties or upon a consent led between the outgoing Advocate and the proposed incoming Advocate. 32. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi v Veronica Muehlmann [2019] eKLR where the Judge observed as follows:“ … In my view, the essence of the Order 9 Rule 9 of the CPR was to protect Advocates from the mischievous clients who will wait until a Judgment is delivered and then sack the Advocate and either replace him ….” 33. In the case of Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR the Court held as follows: “ A party who without any justication decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been oered for failure to observe the Rules of procedure, the Court may well be entitled to conclude that failure to comply therewith was deliberate.” 34. In the present case Judgment had been rendered on the 8/04/2020 and therefore the provision of Order 9 Rule 9 was applicable herein. The rm of M/S WANGUI KAMANDE & COMPANY ADVOCATES, without leave of the Court, led their Certicate of Urgency dated the 15/08/2022 wherein they purported to come on record seeking for orders as herein above stated which action clearly oended the express provisions of Order 9 Rule 9 of the Civil Procedure Rules. 35. Now, the spirit behind the provisions of Order 9 Rule 9 of the Civil Procedure Rules is not to impede the right of a party to be represented by an Advocate of his/her choice, but the provisions set out the procedure to be adhered to when a party wants to change Counsel after Judgment has been delivered so as to avert any undercutting and or chaos. Thus a party so wishing to change his Counsel after Judgment had been passed, must notify the Court and other parties. 36. In the present Application, it is clear that the rm of WANGUI KAMANDE & COMPANY ADVOCATES for the Plainti came on record after Judgment had been delivered. The said rm did not comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules by either ling a consent between themselves and the rm of RAKORO & COMPANY ADVOCATES or they could as well seek leave to come on record from this Court. 37. The Applicant does have a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 above is mandatory and thus cannot be termed as a mere technicality. 38. Thus having found that this procedure was not followed by WANGUI KAMANDE & COMPANY ADVOCATES the said rm has no legal standing to move the Court on behalf of the Applicant on the Application by Notice of Motion under Certicate of Urgency dated the 15/08/2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 8

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39. Therefore this Court nds that the rm of Wangui Kamande & Company Advocates is not properly on record as they did not follow the right procedure as required by law. Based on the above, the Court nds that the Application dated 15/08/2022 is not properly before the Court. 40. Given the foregoing this Court makes the following ndings:a. The Notice of Motion Application dated 22/07/2022 is unmerited and is hereby dismissed. b. The Notice of Motion Application dated 15/08/2022 is unmerited and is hereby dismissed. c. Given the circumstances of this case involving relatives each party shall bear their own costs of the Applications dated 22/07/2022 and 15/08/2022. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 15TH DAY OF JULY 2025 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Ms. Keziah – Plainti 1st – 5th Defendants – Absent Mr. Thuita for the 6th Defendant 7th – 11th Defendants - Absent Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18670/eng@2025-07-15 9

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