Awino v Ochido & 2 others

possession of the suit property in 1989 and was still in possession. The Defendant averred that he had occupied and cultivated the suit property for 36 years. 3. In a judgment delivered on 18th May 2021, the court made a nding that the Plainti had been in possession of the suit property openly with the knowledge of the Defendant, without force, for an uninterrupted period of more than 12 years. The court found that the Plainti had acquired the suit property by adverse possession and directed the Land Registrar, Kisumu, to register the Plainti as the absolute proprietor of the suit property. The court also awarded the Plainti the costs of the suit. 4. The Defendant led an application in the Court of Appeal for an extension of time to le an appeal against the said judgment. The Court of Appeal dismissed the application on 3rd February 2023 for having been brought after an inordinate delay. 5. What I now have before me is the Defendant’s and the Interested Party’s application brought by way of Notice of Motion dated 14th March 2025. In the application which has been brought under Article 50(1) of the Constitution of Kenya, Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the Defendant and the Interested Parties have sought; an order that the judgment delivered herein on 18th May 2021 in favour of the Plainti be reviewed and set aside, and the court be pleased to grant any such orders as it deems proper in the circumstances. The application was brought on the grounds set out on the face thereof and on the supporting adavit of the Defendant and the two Interested Parties, Kennedy Omondi Ochido and Fredrick Oyolo Oloo, all sworn on 14th March 2025. The application was brought on several grounds. The Defendant and the Interested Parties (hereinafter together referred to as “the Applicants”) averred that although the Plainti was occupying only a small portion of the suit property, the court in the judgment delivered on 18th May 2021, ordered that the whole parcel of land be registered in the name of the Plainti. The Applicants averred that the Defendant and the Interested Parties, who were his two sons, were in occupation of the suit property, and were not only residing thereon but were also cultivating the same. The Applicants averred that there was a mistake/error on the face of the record. The Applicants averred that the mistake/error occurred when the court failed to properly evaluate the evidence on the extent of the Plainti’s possession of the suit property. The Applicants averred further that the Defendant had obtained new and important evidence in the form of a survey report which he could not produce at the trial despite the exercise of due diligence. The Applicants averred that the Defendant appeared in person at the trial and, as such, was unable to properly present his case, resulting in substantial injustice to him. The Applicants averred that the Plainti’s witness admitted that the Defendant and the Interested Parties were residing on the suit property, which evidence was not considered by the court. The Applicants averred that if the court had considered the evidence, the outcome of the suit would have been dierent. 6. The Applicants averred that although the suit property measured 6 acres only, the Plainti had claimed that it measured 10 acres. The Applicants averred that the misrepresentation by the Plainti as to the extent of the land she was claiming by adverse possession was a material mistake on the face of the judgment, which vitiates the judgment. The Applicants averred that the court erred, which error was on the face of the record in entering judgment in a case of adverse possession in favour of the Plainti without the benet of a survey report. The Applicants averred that the court had directed that a survey be conducted on the suit property, which direction was ignored by the Plainti. The Applicants averred that the Plainti was unaware of the ground situation of the land she was seeking to acquire by adverse possession. The Applicants averred that in adverse possession claims, the actual size of the land claimed is a material fact and cannot be glossed over by the court. The Applicants averred that the new evidence, which was not produced in court, shows that the Plainti was only in occupation of a small portion of the suit property. The Applicants averred that the other mistake apparent on the face of the record https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18698/eng@2025-10-23 2

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was the court’s failure to conduct a site visit. The Applicants averred that if the court had conducted a site visit, it would have discovered the truth. The Applicants averred that it would serve the interest of justice if the judgment of the court were reviewed and set aside. 7. In his adavit in support of the application, the Defendant reiterated the grounds on the face of the application which I have highlighted above. The Defendant averred that he was the registered owner of the suit property. The Defendant averred that, although the Plainti came to court claiming the whole of the suit property by adverse possession, she was only occupying a small portion thereof. The Defendant averred that the Plainti misstated facts and misled the court into allowing her Originating Summons for adverse possession. 8. In his adavit in support of the application, the 1st Interested Party stated that he was the son of the Defendant, who was the registered owner of the suit property. The 1st Interested Party averred that he was living on the suit property with his family, having entered the property in 2006. The 1st Interested Party averred that the Plainti was only occupying a small portion of the suit property. The 1st Interested Party averred that the Plainti did not make him a party to the suit, although the Plainti knew that he was in occupation of a portion of the suit property and was also cultivating it. 9. In his adavit in support of the application, the 2nd Interested Party averred that he was the son of the Defendant, who was the registered owner of the suit property. The 2nd Interested Party averred that he was living on the suit property, having settled there in July 2007. The 2nd Interested Party averred that the Plainti was occupying only a small portion of the suit property. The 2nd Interested Party averred that the survey report the Defendant wished to produce showed the position of his home on the suit property and the portion of the property he was cultivating. The 2nd Interested Party averred that although he was in occupation of the suit property, he was not joined in the Plainti’s suit as a party. 10. The Plainti opposed the application through a replying adavit sworn on 15th July 2025. The Plainti averred that the Interested Parties had no locus standi to bring the application before the court, as they were never parties to the suit. The Plainti averred that even if the Interested Parties had been joined to the suit as Interested Parties, they would have had no right to seek substantive orders. The Plainti averred that the application had not met the threshold for the grant of the orders of review sought. The Plainti averred that the survey report on which the Applicants had based their application was not new evidence that the Defendant could not produce at the trial of the suit with due diligence. The Plainti averred that the said survey report was made on 21st February 2025. The Plainti averred that the non-production of the said survey report could not be a mistake on the face of the record. The Plainti averred that the application was an appeal disguised as an application for review. The Plainti averred that the court was functus ocio and could not grant the orders sought. 11. At the hearing of the application, the Applicants’ advocate submitted that the application was brought on the grounds of discovery of new evidence, and the existence of mistakes apparent on the face of the record, which they had highlighted on the face of the application and the supporting adavits. The Plainti’s advocate submitted that the Defendant had brought in strangers to the suit as Interested Parties. The Plainti submitted that the application was incompetent as the applicants, who were the Interested Parties, had no locus standi to bring the application for review. The Plainti submitted that an application for judicial review could only be brought on specic grounds. The Plainti averred that a survey report prepared in 2025 could not be considered new evidence. The Plainti submitted that the Applicants had not met the threshold for the grant of an order of review. The Plainti submitted that there was no error on the face of the record or new evidence that could not have been produced with due diligence at the trial. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18698/eng@2025-10-23 3

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12. In a rejoinder, the Applicants’ advocate submitted that the application before the court was made by the Defendant and not by the Interested Parties. The Defendant submitted that the Interested Parties were in occupation of the suit property at the time the suit was heard and determined. Analysis and Determination 13. The court’s power to review its orders and decrees is provided for in Section 80 of the Civil Procedure Act under which the present application was brought. It 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 t.” 14. Order 45 of the Civil Procedure Rules, also invoked by the Applicants, lists specic grounds upon which an application for review can be made. 15. Order 45 Rule 1 of the Civil Procedure Rules provides as follows: 1. (1) Any person considering himself aggrieved— (2) (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. 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.” 16. In Republic v. Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the court stated as follows: 17. 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 a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18698/eng@2025-10-23 4

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18. (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 detailed 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.” In Francis Origo & another v. Jacob Kumali Mungala, Eldoret CA No. 149 of 2001, [2005]eKLR, the Court of Appeal stated as follows on review: …it is clear that an applicant has to show 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 or he must show that there is some mistake or error apparent on the face of the record or that there was any other sucient reason. And most importantly, the applicant must make the application for review without unreasonable delay.” 19. Similarly, in Kenya Power & Lighting Company Limited v. Benzene Holdings Limited t/a Wyco Paints, Nairobi C.A 132 of 2014, [2016] eKLR, the court set the conditions for review as follows: To qualify for a review there are stringent requirements to be met. For instance the applicant must demonstrate that as a matter of right he can appeal but has not exercised that option; that no appeal lies from the decree with which he is dissatised; or that he has discovered a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced when the order was made; or that there is a mistake or error apparent on the face of the record; or that there are sucient reasons to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18698/eng@2025-10-23 5

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warrant the review. It is also a requirement that the application for review must be brought without unreasonable delay.” “Sucient reason” was dened in Attorney General v. Law Society of Kenya & another [2017] eKLR as follows: “Sucient cause or good cause in law means: ...the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused. See BLACK’S LAW DICTIONARY, 9th Edition, page 251. Sucient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” 20. In John Kamau Ruhangi v. Kenya Reinsurance Corporation, Civil Appeal No. 208 of 2006, [2012]eKLR the court stated as follows: It is important to bear in mind that Order 44 Rule 1 of the Civil Procedure Rules sets out the purview of the review jurisdiction. A point outside that purview is not a ground for review. A point which may be a good ground of appeal like an erroneous view of law or evidence is also not a ground for review. That a court reached an erroneous conclusion because it proceeded on an incorrect exposition of the law or misconstrued a statute or other provision of law is no ground for review. All these are grounds of appeal.” 21. As mentioned earlier, the application before the court has been brought by the Defendant and the Interested Parties. The Interested Parties were not parties to the suit when the impugned judgment was made. The Interested Parties have not sought to be joined to the suit. The Interested Parties are, therefore, strangers to the suit and cannot seek a review of a judgment delivered in a matter in which they were not parties. I am also of the view that this suit was between the Plainti and the Defendant. The judgment of the court was delivered only against the Defendant. The court did not make any order against the Interested Parties that can be executed against them. The Interested Parties cannot, therefore, say that the judgment of the court was made against them without giving them an opportunity to defend themselves. There is no evidence that the Plainti has sought to execute the judgment of the court, which was only against the Defendant, against the Interested Parties. Even if that were the case, the Interested Parties should have sought an order to be joined in the suit as Interested Parties before they could seek any orders from the court. In the circumstances, I agree with the Plainti that the Interested Parties are improperly before the court, and as such are not entitled to seek a review of the judgment of the court delivered on 18th May 2021. 22. Concerning the Defendant, I am not satised that the Defendant has established any valid ground warranting a review of the judgment delivered herein on 18th May 2021. First, the application was brought more than 3 years after the delivery of the impugned judgment. There is no doubt that a delay of 3 years in bringing an application for a review is inordinate. The Defendant has not given any explanation or reason for this delay. This unreasonable delay disentitles the Defendant to the review sought. The application would not succeed even if considered on merit. It is clear from the pleadings and the evidence on record that the Plainti claimed to have acquired the whole of the suit property by adverse possession. The Plainti produced evidence showing that her deceased husband purchased the whole of the suit property from the rst registered owner. The burden was on the Defendant to prove that although the Plainti claimed to have purchased the whole of the suit property, she was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18698/eng@2025-10-23 6

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only occupying a small portion of the property, with the rest being occupied by the Defendant and his two sons. The court had no role to play in the parties’ discharge of their burden of proof. The court had no duty to visit the site of the property in dispute or to order the preparation of a survey report on its own motion. Either party could produce a survey report in evidence to support its case or request the court to visit the site. 23. In the circumstances, failure by the parties to produce a survey report in evidence cannot be termed as an error or a mistake on the part of the court, apparent on the face of the record, which can be corrected through a review of the judgment. I am also not persuaded that there is new and important evidence that the Defendant could not have presented at the trial with due diligence. The survey report, which the Defendant is calling new evidence, is dated 21st February 2025. This means that it was not available in 2021 when this suit was heard and determined. This means that it is not some piece of evidence that was available but could not be produced, even with due diligence on the part of the Defendant. What the Defendant is trying to do, in my view, is to adduce evidence that he failed to produce at the trial. Why was this survey report not prepared and produced at the trial? The fact that the Defendant was acting in person and as such could not present his case properly is not a sucient reason to review a judgment. 24. The Defendant has also blamed the court for not properly evaluating the evidence on record, particularly as concerns the area or size of the suit property, which the Plainti occupied, whether it was the whole or only a portion of the suit property. An erroneous decision by the court is not a ground for review, but an appeal. 25. Due to the foregoing, the Defendant has not persuaded me that there exists any valid ground warranting the review and setting aside of the court's judgment delivered on 18th May 2021. What has come out is that the Defendant has realised that his defence would have been presented to the court much better if he had engaged an advocate. The Defendant now seeks an opportunity to present additional evidence in support of his defence. Public policy dictates that there must be an end to litigation. A review as a remedy was not meant to give a second chance to the parties in litigation. Conclusion 26. In conclusion, I nd no merit in the Defendants’ Notice of Motion application dated 14th March 2025. The application is dismissed with costs to the Plainti. DELIVERED AND SIGNED AT KISUMU ON THIS 23RD DAY OF OCTOBER 2025 S. OKONG’O JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: N/A for the Plainti Ms. Jumba h/b for Mr. Khadulo for the Defendant Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18698/eng@2025-10-23 7

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