Too & 3 others v Ali (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 3534 (KLR)

4. That this Honorable court be pleased to review, set aside and/or vary the Judgment delivered on 6 th February 2026. 5. That upon review, this Honorable Court be pleased to (a) Reopen the proceedings; and/or (b) Order that the suit be heard afresh. 6. Costs of this application provide for. 3. The grounds are on the face of the Application and are set out in paragraphs a to h. 4. The Application is supported by the Affidavit sworn by Lily Chebet Too alias Lily Too, the 1 st Plaintiff/Applicant herein on the 23rd February 2026 and a supplementary affidavit sworn on the 16th March 2026. 5. The Application is opposed. There is a Replying Affidavit sworn by Abdi Ali the Defendant/Respondent on the 11th March 2026. On the 18th March 2026, the court with the consent of the 6. parties directed that the Notice of Motion be canvassed by way of written submissions. THE PLAINTIFFS’/APPLICANTS’ SUBMISSSIONS 7. They are dated 30th March 2025. Counsel submitted that the Plaintiffs/Applicants have discovered new and important evidence demonstrating that the proceedings leading to the impugned judgment were fundamentally tainted by fraud, impersonation and material misrepresentation. They raise two issues for determination: - ELC OS E002 OF 2024 2

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(a) Whether the Applicants have met the legal threshold for the grant of an order of review. (b) Who should bear costs of this application? 8. It is submitted that the law governing review is well settled. Reliance is placed on Order 45 rule 1 of the Civil Procedure Rules, and sections 80 of the Civil Procedure Act. 9. Counsel further submitted that the Applicants have demonstrated that they have obtained new and crucial evidence in the form of an affidavit sworn by the true registered proprietor of the suit land being Mr. Ali Abdi Ali alias Abdi Ali corroborated by that of his daughter who categorically disowns the proceedings and confirms that he never instructed counsel nor participated in the suit. 10. It is submitted that the averments in the supplementary affidavit goes to the very root of the proceedings and fundamentally alters the substratum of the case. Reliance is placed on the case of National Bank of Kenya Ltd Vs Ndungu Njau (1997) eKLR 11. It is also submitted that the Applicants have demonstrated that the proprietor was previously untraceable despite diligent efforts. 12. It is submitted that the circumstances herein clearly meet the threshold of “any other sufficient evidence” ELC OS E002 OF 2024 3

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That it is trite law that Fraud vitiates all transactions and proceedings as held on Lazarus Estates Ltd Vs Beasley (1956) QB 702, Reliance is also placed on the case of Benjoh Amalgamated Ltd & Another Vs Kenya Commercial Bank Ltd (2014) eKLR. 13. It is submitted that the entirety of the defence was mounted by a person who was not the registered proprietor of the suit land had no authority to act as the Defendant in this matter and swore false affidavits and presented forged documents to the court. 14. It us submitted that the said Ali Abdi Ali alias Abdi Ali disowns all participation in the implunged proceedings and provides verifiable personal particulars including the correct Identity Card and Kenya Revenue Authority PIN. That he has explained in his affidavit that during the pendency of the suit he was undergoing medical treatment at the Defence Forces Memorial Hospital and was not in a position to travel to Nakuru to swear affidavits presented to this court or participate in court proceedings in any other manner. 15. It is also submitted that Abdi Ali reaffirms that he sold the suit land to the late James Keiyo Kiptenai (the 1 st Applicant’s husband) and handed over all completion documents authorizing transfer of the suit land to the deceased. This position was confirmed by Sahara Ali Abdi, his daughter. 16. It is submitted that the judgment of this Honorable Court was procured ELC OS E002 OF 2024 on the basis of proceedings that were 4

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fundamentally defective having been conducted by a person who lacked both identity and authority. That it is strikes at the very root of the adjudicative process, thereby constituting sufficient reasons within the meaning of order 45 rule 1 of the Civil Procedure rules to warrant the setting aside of the impugned judgment. Reliance is placed is placed in the case of Investments Limited (1993) eKLR, Pancras Vs Commissioner T.Swai Vs Shanzu for Lands Kenya Breweries Limited (2014) eKLR 17. It is submitted that the balance of justice tilts in favour of setting aside the impugned judgment and allowing the matter to be heard on merits. They pray that the Application be allowed with costs. THE DEFENDNT’S/RESPONDENT’S SUBMISSIONS 18. They are dated 26th March 2026. They raise five issues for determination: (a) Whether the Application statutory threshold met the for review under Order 45 Rule 1; (b) Whether the material relied upon constitutes “new and important evidence” discovered with due diligence; (c) Whether the Applicants impermissibly introduce a ELC OS E002 OF 2024 new cause of action; 5

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(d) Whether the impersonation/fraud allegations are proved of to the required standard; and (e) Whether, even if admitted, the material would alter the judgment. 19. Counsel submitted that the Court of Appel in National Bank of Kenya Ltd Vs Ndungu Njau held that review is confined to correcting patent error or considering a genuinely new matter, it is not a vehicle for re arguing the case. Reliance is also placed on the case of Pancras T Swai Vs Kenya Breweries Limited. 20. It is also submitted the Applicants rely on alleged sale agreement from 1994-1995, affidavits from a person styled Ali Abdi Ali and correspondences suggesting investigations. That the said documents have always been within their custody as Administrators. That this therefore means the evidence is not new. Reliance is placed on the case of Rose Mpanju Kaiza; Francis Origo Kaiza Vs Angelo & Aother Vs Jacob Kumali Mungala. 21. It is submitted that the suit as pleaded and tried was one of adverse possession, hence the Applicants were to prove open, continuous, exclusive and hostile possession of the statutory period. Reliance is placed on the case of Mtana Lewa Vs Kahindi Ngala Mwagandi; Wambugu Vs Njuguna; Kweyu Vs Omutut. ELC OS E002 OF 2024 6

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22. It is submitted that the present application abandons the doctrine and advances a different case; purchase, transfer and title. Further that review is not a forum for introducing a new cause of action. Reliance is placed on the case of Benjoh amalgamated Ltd Vs Kenya Commercial Bank Ltd. That this application is an abuse of the court process. 23. It is submitted that the allegation that the Respondent is an imposter is grave and engages the law on fraud. That the Applicants have presented no forensic report nor investigative finding, no judicial determination- only an assertion and a letter indicating ongoing investigations which is not proof. 24. It is submitted that review requires that the new matter would probably influence the outcome. Reliance is placed on the case of Muyodi Vs Industrial and Commercial Development Corporation. Further that the Applicants do not demonstrate any error apparent on the face of the record which error must be self- evident. 25. It is further submitted that the relief sought is spent, academic, and overtaken by events. 26. Finally, it is dated that this is an appeal in disguise and an abuse of the court process. He prays that the same be dismissed with costs to the Respondent. ELC OS E002 OF 2024 7

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ANALYSIS AND DETERMINATION 27. I have considered the Notice of Motion, the affidavit in support, the responses thereto, the written submissions and the authorities cited. 28. Orders 45 rule 1 of the Civil Procedure Rules provides that: 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 evidence which, and after important the matter exercise of or 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 sufficient 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. Section 80 of the Civil Procedure Act provides that: - ELC OS E002 OF 2024 8

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“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 fit.” 22. It is the plaintiffs/Applicant’s contention that the Defendant/Respondent is an impostor as the real Abdi Ali; is alive and has denied that he participated in the proceedings leading to the judgment of 6th February 2026. They have annexed an affidavit from the said Abdi Ali sworn on the 16th March 2026, stating the reasons why he did not participate in the proceedings culminating in the said judgment. 23. In the said judgment the court refers to a “site visit” by the Honorable Court, where it was confirmed that “ the property had no signs of long habitation or settled use, save for a recent constructed temporary structure…..”. I have gone through the Court record. I do not see any directions on the site visit. ELC OS E002 OF 2024 9

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The originating summons proceeded by way of Affidavit evidence I have not seen any notes depicting a site visit. It is hard to confirm that there was such a site visit. 24. I agree with the Plaintiffs/Applicants’ submissions that the facts presented by the affidavit of Ali Abdi Ali would make it practically impossible for the genuine proprietor to have sworn the affidavits or instructed counsel as alleged thereby reinforcing their position that the proceedings were conducted by an impostor. 25. It is my view that this would constitute “any other sufficient reason” to warrant the court to review the said judgment. In the case of Shanzu Investments Limited Vs Commissioner of Lands (1993) eKLR the court of appeal referred to the case of Sadar Mohamed Vs Charan Singh (1959) EAI 793 where Farel J held that “ there was unfettered discretion in court to make such orders as it thinks fit on an application for review and that the omission of any qualifying words decision Yusuf Vs was deliberate. However, in a later Nokrach (1971) EA 104, the late Charan Singh J held that “any other sufficient reason “ as set out in order 44 Rule 1, means sufficient reason analogous to those in the title. In Wangechi Kimita & Another Vs Mutahi Wakabiru CA No 80 of 1985 (unreported) it was held that; ELC OS E002 OF 2024 10

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“ any other sufficient reason need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act. The court further went on to hold that the other grounds set out in the rule did not in themselves form a genius or class of things with which the third general head would be said to be analogous” The current position would then appear to be that the court has unfettered discretion to review its own decrees or order for any sufficient reason” 26. In the case of Benjoh Amalgamated Ltd & Another Vs Kenya Commercial Bank Ltd (2014) eKLR, the court stated thus; “ … notwithstanding explicitly that the Court had not been statutorily jurisdiction conferred with the to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias or other injustice with a view to correct the same….” 27. Similarly in Republic Vs Public Procurement Administrative ELC OS E002 OF 2024 11

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Review Board & 2 others (2018) eKLR the court stated thus; “Section 80 gives the power of review and Order 45 sets out the rules. The rules lay down the jurisdiction and scope of the 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; (b) On account of some mistake or error apparent on the face of the record, or (c) For any other sufficient whatever the ground reason there and is a requirement that the application has to be made without unreasonable delay” 28. I am guided by above authorities and I am satisfied that the Plaintiff/Applicants have demonstrated sufficient reason to warrant the setting aside of the judgment. 29. The claim that the Defendant/Respondent presented forged ELC OS E002 OF 2024 12

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documents in my view, constitutes sufficient reason to set aside the judgment so that parties can be heard orally. Most of these issues will be clarified. 30. In conclusion, I find merit on this application and grant the orders sought namely a. That the judgment delivered on the 6 th February hereby set aside. b. That the proceedings are hereby reopened and the suit be heard afresh by way of viva voce evidence. c. That the Plaintiffs/Applicants do bear costs of the Application. Ruling dated, signed and delivered virtually at Nakuru this 10th day of June 2026. L KOMINGOI JUDGE ELC OS E002 OF 2024 13

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In presence of: Mr. Mutai for Mr. Baraza Wafula for the Plaintiffs No appearance for the Defendant Court assistant: Derrick /Irene ELC OS E002 OF 2024 14

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