Githuni & another v Muigai & another (Environment and Land Appeal E021 of 2021) [2026] KEELC 2213 (KLR)

of David Muigai Mwangi, now deceased. Three, LR No. Loc. 2/Makomboki/1301 was among the titles cancelled by a court order issued on 24-2-2022 in Murang’a ELC Case No. 21 of 2019. Four, it is clear that among the titles cancelled in the said judgment was Loc. 2/Makomboki/1301 which was the parent title to the two suit parcels which are subject to this appeal. It was erroneous for the same court to make orders whose efiect was to contradict earlier orders made by the same Court. Finally, the judgment in this case was delivered in the absence of the Respondents and their advocate. For the above and other reasons, the Respondents pray that their motion be allowed. 3. The motion is opposed by the Appellants and their counsel has filed five grounds of opposition dated 4-10-2025. i. The application is misconceived and incompetent. ii. The application is bad in law, a gross abuse of the process of the court and untenable. iii. The application is fatally and incurably defective. iv. The application is frivolous and vexatious. v. The application is otherwise without merit and should be dismissed with costs. Secondly, the second Appellant has sworn a replying afidavit dated 23-2-2026 in which the following is deposed. One, the application has been filed by an advocate who is not on record and it should be struck out. Two, there is no discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Respondents or could not be produced by them at the time the judgment was passed. Three, there is no suficient reason to review the decree. Four, the judgement only established the Appellants beneficial interest in the land and the judgment in ELC case No 21 of 2019 does not afiect this in any way nor does it prejudice the Respondents. Four, the title to Loc. 2/Makomboki/301 did not exist at the time judgment in ELC Case No . 21 of 2019 was delivered on 24-2-222 as it had been closed on subdivision to title No. Loc. 2/Makomboki/1804 and 1805. Finally, the Applicants are asking this court to sit on appeal against its own orders as they are saying the Court make erroneous orders which contradict its earlier ones. 4. Counsel for the parties filed written submissions dated 23-2-2026 and 10-3-2026 respectively. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit, the replying afidavit, the lower court record, the judgment dated 23-9-2024, the written submissions by both sides and the law cited therein. I find that the following issues arise. 5. i. Whether the Respondents’ counsel is properly on record. ii. Whether the decree dated 24-2-2022 discloses suficient material on the actual decision in Murang’a ELC Case No. 21 of 2019. iii. Whether this court could consider the decree in ELC Case No. 21 of 2019 yet it was not the trial court. iv. Whether the motion dated 19-12-2024 meets the criteria for review as per Order 45 rule 1 of the Civil Procedure Rules. Regarding the 1st issue, I find no evidence to prove that the Respondents’ counsel is properly on record. It is a requirement of Order 9 rule 9 of the Civil Procedure Rules that “when there is a change of advocate… after judgement has been passed, such a charge… shall not be efiected without an order of the court- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2213/eng@2026-04-21 2

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a. Upon an application with notice to all the parties or b. Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be. ’’ In this case, no court order was ever recorded yet the counsel for the Respondents came on record after the judgment of 23-9-2024. When this anomaly was raised in the afidavit by the 2nd Appellant dated 23-2-2026, the Respondents and their counsel did not file a supplementary afidavit annexing any order made by the court. It is only in the submissions dated 10-3-2026 where I have seen a submission that a consent signed by the firm of Mbiyu Kamau and Co. Advocates the firm of the Respondents’ counsel was filed in court on 19-12-2024. Such consent should have been followed by a court order because Order 9 rule 9 provides a change of advocate such as the one in this case… shall not efiected without an order of the Court. A supplementary afidavit with the order made by the court was the bare minimum before the Respondents’ counsel could be properly on record. 6. As for the second issue, I find that the decree dated 24-2-2022 does not disclose suficient material on what the court decided and the reasons therefor. Without the full judgement, it is dificult to discount the deposition by the second appellant in paragraphs 8 and 9 of the replying afidavit to the efiect that the judgment did not prejudice the Appellant and that the title for LR No. Loc. 2/Makomboki/1301 did not exist at the time of judgment in ELC 21 of 2019 was delivered on 24-2-2022 because the title thereto had been closed on subdivision of LR No. Loc. 2/Makomboki/1804 and 1805. It is also curious why the Respondents did not attach the entire judgement. The full judgment would have dispelled all the lingering questions on what the judgment was really all about. 7. Looking now at the third issue, I find that it was incumbent upon the Respondents to introduce the decree in ELC Case No. 21 of 2019 to the court. The decree was issued on 8th March 2022. The record shows that the Respondent’s counsel appeared before court on 27-9-2023, 30-11-2023, 12-2-2024 and 3-7-2024. By then the decree in ELC Case No. 21 of 2019 had been issued. The Respondent’s counsel did not mention the said decree to the court. He did not seek the adduce additional evidence in line with Section 78(1) (d) of the Civil Procedure Act which allows the introduction of such evidence on appeal. That was the only lawful avenue of introducing such evidence. Once such opportunity passed by, there was no other lawful avenue of introducing it to the Court. It is now too late to introduce it. 8. Finally on the fourth issue, I find that the motion does not met the criteria set in Order 45 rule 1 (1) (b) for the following reasons. One, the decree in ELC Case No. 21 of 2019 having been issued on 8-3-2022 and the appeal having come up for directions on several occasions including 3-7-2024, which is over 2 years later, the decree was not a new matter. Two, the said decree was within the knowledge of the Respondents. Three, the judgment was delivered on 23-9-2024 and it was not until 19-12-2024, almost three months later that the current application was filed. These three reasons disqualify the motion from the criteria in Order 45 rule 1 Civil Procedure Rules. 9. In conclusion and for the reasons already given, I find no merit in the motion dated 19-12-2024 and I dismiss it with costs to the Appellants. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 21ST DAY OF APRIL, 2026. M.N. GICHERU JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2213/eng@2026-04-21 3

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Delivered online in the presence of ;Court Assistants – Jackline and Anthony Appellants’ Counsel – Miss Wambui Respondents’ Counsel – Miss Njuguna h/b for Wahome Gikonyo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2213/eng@2026-04-21 4

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