Mueke v Mwaniki (Environment and Land Case 221 of 2014) [2026] KEELC 1005 (KLR)

23/10/2018, subsequent to this, a co-defendant tragically passed away, causing the suit against him to abate. 3. Further, the parties subsequently amended their pleadings, with the plaintifi submitting an amended plaint dated 13/05/2021, the defendant filing an amended statement of defence along with an amended counterclaim dated 05/05/2023, and the plaintifi subsequently filing a reply to the amended defence and a defence to the defendant’s counterclaim on 26/04/2023. A new pre-trial directions session was conducted on 6/11/2024, during which he presumed that the matter was to be heard de novo on 26/02/2025. However, the court ruled otherwise, necessitating the need to reopen his case. 4. He maintains that the defendants are responsible for the adjournment during the hearing of the suit on 26/02/2025, as they raised an objection which the court upheld. Furthermore, he was prepared to testify, and therefore, costs should not have been imposed against him. Additionally, he requests that this court prevent the defendants from raising future objections, as such actions hinder the progression of this matter. 5. The motion is challenged by the defendant’s replying afidavit of 4/04/2025, in which he asserts that the plaintifi's claim that the land subdivision took place during the course of the litigation is contradicted, with evidence indicating that it occurred prior to that period. No new or important evidence justifies reopening the case; any such evidence could have been obtained earlier with reasonable diligence. 6. Allowing the case to be reopened would be an injustice, as the plaintifi has not explained the significant delay in seeking to reopen it. The costs for adjournment were rightly imposed on the plaintifi, who failed to notify the court or the opposing party in time, and the plaintifi has not met the legal threshold for review, lacking both new evidence and any error apparent on the record. The request to bar the defendant from making further objections is characterised as unprecedented and contrary to the principles of a fair trial. 7. In quick rejoinder, the plaintifi’s supplementary afidavit reiterated the averments in his earlier afidavit. Subsequently, the court directed the parties to submit written arguments with clear directions regarding the page limitations. However, Messrs. Purity Mureithi & Co. Advocates for the plaintifi and Fred K. Musyimi & Associates Advocates for the defendant failed to adhere to these directives and submitted extensive arguments. Without unnecessary elaboration, and guided by the Supreme Court of Kenya's decision in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others [2023] KESC 69 (KLR), this court hereby strikes out these submissions. Issues for determination, Analysis and Determination. 8. Thus, having given careful thought to the motion, its grounds and afidavits, the distilled issues for determination that will adequately address the matters in controversy are: a. Whether the plaintifi should be recalled. b. Whether the plaintifi has met the legal threshold to warrant the review of the orders issued in the impugned ruling. c. Whether the defendant should be barred from raising objections during the hearing of this matter. These issues shall be handled in chronological order shortly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24 2

page 2 of 6

a. Whether the plaintifi should be recalled. 9. The pertinent legal provisions addressing this matter are located in Section 146 (4) of the Evidence Act, which authorises the court to recall a witness for additional examination-in-chief or further crossexamination. This Provision is mirrored in our Order 18, Rule 10 of the Civil Procedure Rules (CPR), which also grants the court the authority to pose questions to a witness. 10. In reopening a case, the court exercises judicious discretion rooted in law, evidence, and reason. The criteria to be applied in this discretionary exercise were comprehensively summarised by the persuasive decision of Susan Wavinya Mutavi v Isaac Njoroge & another [2020] KEELC 8 (KLR), as follows: “ First, the jurisdiction is a discretionary one and is to be exercised judiciously. In exercising that discretion, the court is duty-bound to ensure that the proposed re-opening of a part’s case does not embarrass or prejudice the opposite party. Second, where the proposed reopening is intended to fill gaps in the evidence of the applicant, the court will not grant the plea. Third, the plea for re-opening of a case will be rejected if there is inordinate and unexplained delay on part of the applicant. Fourth, the applicant is required to demonstrate that the evidence he seeks to introduce could not have been obtained with reasonable diligence at the time of hearing of his case. Fifth, the evidence must be such that, if admitted, it would probably have an important infiuence on the result of the case, though it need not be decisive. Lastly, the evidence must be apparently credible, though it need not be incontrovertible.” 11. Having reviewed the grounds laid out in the motion and examined the record, this court does not entertain in its mind that the plaintifi has satisfied the legal threshold to warrant the exercise of discretion in his favour. This conclusion is drawn from the fact that, after he had closed his case and prior to the testimony of the defence, he discovered that the substance of the adjudication, namely LR No. Machakos/Mua Hills/ 601 (the suit property) had been subdivided to create Machakos/ Mua Hills/ 1484-1487. This subdivision prompted various amendments to the pleadings by all parties involved. In granting the plaintifi’s application to amend the plaint, the court, in its ruling of 30/04/2021, duly found that the subdivision was pendente lite. 12. Accordingly, having made such a finding, the plaintifi’s recall is obviously not intended to fill gaps in his case; rather, this evidence on subdivision was not reasonably available to him at the time of his testimony. The production of records of such subdivisions is crucial to his case. Furthermore, the defendant is responsible for the circumstances that the plaintifi now faces, and he cannot be permitted to gain an advantage over the plaintifi and benefit from his illegality. Therefore, this court finds that such relief is justified. b. Whether the plaintifi has met the legal threshold to warrant the review of the orders issued in the impugned ruling. 13. With respect to this issue, the relevant provisions governing the review of court decisions are set out in Section 80 of the Civil Procedure Act and Order 45, Rule 1 of the CPR. Section 80 states that; “ 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24 3

page 3 of 6

(b) 14. 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 fit.” Further, Order 45, Rule 1(1), of the CPR provides as follows: “ (1) 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.” 15. The salient conditions brought out in Order 45 Rule 1 (1) of the CPR, such as the discovery of new and important matter, mistake, and suficient cause, have to be proved by an applicant, and in dealing with such applications, the court has to exercise its judicious discretion. With regard to the prevailing jurisprudence, this court aligns itself with paragraph 32 of the Supreme Court’s decision in Parliamentary Service Commission v Wambora & 36 others [2018] KESC 74 (KLR), in which it articulated the following non-exhaustive guiding principles for the consideration of applications for review of court decisions: (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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24 4

page 4 of 6

(b) 16. 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.” Accordingly, in the circumstances of this case, the plaintifi has not indicated that the basis of the motion involves an obvious error on the face of the impugned ruling, a mistake, or suficient cause. He is reiterating reasons why the costs should not have been imposed upon him. However, guided by the decision in the Parliamentary Service (supra), the court concludes that the plaintifi is attempting to reargue his case, which is not permissible in review proceedings. This court further determines that it is functus oficio in this matter and that the grounds raised are not suitable for review but are appropriate for an appeal. Consequently, this court finds that the relief sought is unmerited. c. Whether the defendant should be barred from raising objections during the hearing of this matter. 17. This is an unusual prayer and encroaches upon our principles concerning the right to a fair hearing. As articulated in the decision of the Supreme Court of Kenya in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR), the right to a fair trial is a non-derogable right and constitutes one of the foundational elements of a just and democratic society. The absence of this right would inevitably lead to the collapse of the rule of law and diminish public confidence in the justice system. 18. The European Court of Human Rights recognises that the right to a fair trial extends to both criminal and civil proceedings and aims to guarantee that a litigant is not deprived of the opportunity to present his case efiectively before the court. See paragraph 87 of the decision of the Apex Court in Mahamud v Mohamad & 3 others [2018] KESC 62 (KLR). 19. Considering all these factors, there is, without any doubt, that the reliefs sought by the plaintifi are unwarranted. This court afirms this because the prayers he is requesting contradict the fundamental principles outlined in Article 25(c) of the Constitution and the right to a fair hearing, which is underpinned by Article 50. 20. In elucidating this constitutional right, which is extensive and encompasses the right to a fair trial, the decision of the Supreme Court of Kenya in Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR) acknowledged that the principles of natural justice support this right. These principles include the concepts of audi alteram partem (hear the other side; no one shall be condemned unheard) and nemo judex in causa sua (no man shall judge his own case). In consequence, this court therefore finds this prayer is not merited. 21. In the end, and for the above reasons and findings and considering this is an interlocutory ruling, this court grants the following final orders: a. Plaintifi’s case shall be reopened for him to testify. b. Costs shall be in the cause. c. A hearing date of the main suit shall be issued. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 24TH FEBRUARY, 2026. HON. A. Y. KOROSS JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24 5

page 5 of 6

RULING DELIVERED VIRTUALLY CONFERENCING PLATFORM THROUGH MICROSOFT TEAMS VIDEO In the presence of; Ms Kanja Court Assistant Miss Mutunga holding brief for Mr. Musyimi for defendant Miss Muriithi for plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24 6

page 6 of 6