Agnes Mumbi Karuga v National Irrigation Authority & 4 Others

The application is premised on the nine (9) grounds on its face and is supported by the affidavit of Agnes Mumbi Karuga, applicant. sworn on 31st October 2024. 2. The Applicant depones inter alia that in its judgment delivered on 31st July 2024, and particularly at paragraph 18 thereof, this Court observed that it was unclear whether she and her late mother, Eunice Muthoni Dishon (deceased), held Rice Holding No. 2251 as joint proprietors or as tenants in common; that she is now in receipt of a letter dated 2nd April 2000, authored by Karuga Mburia (deceased), which, removes that uncertainty, as he expressly communicated his intention to surrender his interest in Rice Holding No. 2251 by directing the 1st Respondent to remove his name from the tenancy records and to substitute hers; that in the said letter, the deceased further confirmed that the rice holding was intended to be held jointly by herself and her late mother, Eunice Muthoni Dishon (deceased), which arrangement was consistent with the previous registration under which the holding had been jointly registered in the names of Karuga Mburia (deceased) and Eunice Muthoni Dishon (deceased). 3. It is her case that the letter bears the official stamp of the 1st Respondent, demonstrating that it was duly received. She contends that despite those clear instructions, the 1 st Respondent failed to effect the intended changes, thereby KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 2

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giving rise to the uncertainty surrounding the intention of Karuga Mburia (deceased) and the nature of the Applicant's interest in the rice holding. The Applicant further depones that following the death of Eunice Muthoni Dishon on 24 th December 2008, she became the sole proprietor of Rice Holding No. 2251 by virtue of the doctrine of survivorship. She therefore contends that had the letter dated 2 nd April 2000 been placed before the Court during the hearing of the substantive Judicial Review proceedings, the Court would have appreciated the intention of Karuga Mburia (deceased) and arrived at a different determination. It is on that basis that the Applicant urges the Court to review its judgment delivered on 31st July 2024, contending that the letter constitutes new and important evidence warranting the exercise of the Court's review jurisdiction. She maintains that the application has been brought without unreasonable delay and that it is in the interests of justice that the orders sought be granted. 4. The application is opposed by the 1 st and 2nd Respondents through the Grounds of Opposition dated 28 th April 2026. They contend inter alia that the application falls short of the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 3

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It is their position that the letter dated 2 nd April 2000 does not constitute new and important evidence as it was, at all material times, within the Applicant's knowledge and possession and could, with the exercise of due diligence, have been produced during the hearing of the substantive Judicial Review proceedings. They further contend that the Applicant's complaint against her previous advocate for failing to produce the document cannot form the basis of an application for review, and that any remedy arising from such omission lies elsewhere. According to the Respondents, the Applicant is merely seeking to fill evidentiary gaps after judgment, and to reopen a matter that has already been conclusively determined, thereby inviting the Court to sit on appeal over its own decision. 5. The 3rd, 4th, and 5th Respondents opposed the application through the replying affidavit of Nancy Njoki Dishon, the 5th Respondent, sworn on 13th May 2025 on her own behalf and with the authority of the 3 rd and 4th Respondents. She inter alia depones that the Applicant is her sister and that Rice Holding No. 2251 M.17 originally belonged to their late father, Dishon Karuga Mburia (deceased), who died in 2007. She states that upon his demise, the rice holding was transferred into the name of their late mother, Eunice KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 4

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Muthoni Dishon (deceased), who later passed away in 2008. According to the Respondents, they have all continued to utilize and cultivate the rice holdings to date. 6. She further depones that on 29 th June 2023, the parties appeared before the office of the 2nd Respondent after the Applicant laid claim to the entire rice holding. Following a hearing, the 2nd Respondent rendered a decision apportioning Rice Holding No. 2251 M.17 amongst the family members, with the Applicant receiving a larger share than the rest. Despite considering the allocation unfavourable to them, the Respondents accepted the decision and have since settled on and continued to cultivate their respective portions. 7. The 5th Respondent contends that the Applicant has persistently sought to challenge the distribution of the rice holding. She points out that prior to the present application, the Applicant had filed an application dated 25th October 2023, and now seeks to review this Court's Judgment delivered on 31st July 2024. It is her position that the present application is an abuse of the court process and is intended to enable the Applicant to claim the entire rice holding to the exclusion of her sisters. 8. She further deposes that the Applicant failed to disclose that, before filing the present application, she had sought leave from the Court of Appeal at Nyeri to lodge an appeal out of time against this Court's Judgment, but that KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 5

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application was unsuccessful. According to the Respondents, the present application for review was only lodged after the Applicant failed to obtain the leave sought from the appellate court. 9. With regard to the letter dated 2 nd April 2000, the 5th Respondent disputes its authenticity and states that she is not satisfied that it was authored by their late father, Dishon Karuga Mburia (deceased). She contends that the document ought to be authenticated before any reliance can be placed upon it. The Respondents, therefore, maintain that the Applicant has approached the Court without clean hands and is seeking, without any lawful justification, to reopen a dispute that has already been determined. They urge the Court to find that the application is devoid of merit, amounts to an abuse of the court process, and should be dismissed with costs. 10. The 3rd, 4th and 5th Respondents also filed Grounds of Opposition dated 26th February 2026, which were, on application by the applicant, expunged from the record on 9th April 2026 for being filed without leave. Parties Submissions: 11. The learned counsel for the applicant and 1 st & 2nd respondents filed their written submissions dated 30th January 2026, and 27th April 2026 respectively, that the court has considered. The 3rd to 5th Respondents also filed KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 6

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their submissions dated the 26 th February 2026 which the court has considered. 12. The Counsel for the applicant submitted inter alia that the application satisfies the requirements for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules on the ground of discovery of new and important evidence. Relying on the case of Accredo AG & 3 Others versus Stefano Uccelli & Another [2017] eKLR, counsel submitted that the Court has jurisdiction to review its decision where sufficient cause has been demonstrated and no appeal has been preferred. 13. Counsel argued that the Applicant had discovered new and important evidence in the form of a letter dated 2nd April 2000, annexed as AMK-1, which was authored by her late father, Karuga Mburia (deceased), directing the National Irrigation Authority to register the Applicant and her late mother, Eunice Muthoni Dishon (deceased), as joint licensees of Rice Holding No. 2251 Unit M.17. It was submitted that the letter, together with the surrender documents, clearly demonstrates the intention of the deceased that the Applicant and her late mother were to hold the rice holding jointly and that this evidence bears directly on the findings made by the Court in its Judgment. KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 7

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14. Counsel further submitted that although the said documents had been availed to the Applicant's previous advocate, they were inadvertently omitted from the record during the hearing of the substantive proceedings. The Court was therefore urged not to visit the mistake of counsel upon the Applicant, contending that had the documents been produced, the Court would likely have arrived at a different conclusion. Counsel consequently urged the Court to review and set aside its Judgment in the interests of justice. 15. The 3rd, 4th, and 5th Respondents filed written submissions dated 26th February 2026, submitting inter alia that the Applicant's application is misconceived, devoid of merit, and an abuse of the court process. Reliance was placed on the case of D.T. Dobie & Company (Kenya) Limited –vs- Joseph Mbaria Muchina & Another [1982] KLR 1 in urging the Court to find that the application is unsustainable and to should be dismissed with costs. 16. The 1st and 2nd Respondents filed written submissions dated 27th April 2026. Counsel submitted that the Applicant had failed to satisfy the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 8

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Relying on the decision In re Estate of Anne Chepngeno Chebii (Deceased) [2022] KEHC 14037 (KLR), counsel submitted that the jurisdiction to review is strictly limited to the grounds prescribed under Order 45 Rule 1 and that an applicant seeking review on the ground of discovery of new evidence must demonstrate that the evidence was not within his or her knowledge and could not, despite the exercise of due diligence, have been produced at the time the decree was made. 17. Counsel argued that the letter dated 2 nd April 2000 does not qualify as new and important evidence since it was at all material times within the Applicant's knowledge and possession. It was submitted that the Applicant's complaint is not that the document was unavailable, but that her previous advocate failed to produce it during the hearing. Counsel contended that such an omission cannot found an application for review and that any grievance arising from an advocate's conduct lies elsewhere and not in the Court's review jurisdiction. 18. Counsel further submitted that litigants bear a responsibility to diligently prosecute their cases and cannot simply attribute every omission to their advocates. It was also submitted that the Applicant had previously sought leave before the Court of Appeal to lodge an appeal out of time, which application was dismissed, and KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 9

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that the present application amounts to an impermissible attempt to reopen litigation through the review jurisdiction. Counsel therefore urged the Court to uphold the principle of finality in litigation and dismiss the application with costs. Analysis and Determination: 19. The issues arising for the court’s determinations in this application are as follows: a. Whether the Applicant has met the threshold for review of this Court's judgment on the ground of discovery of new and important evidence. b. Who pays the costs? 20.I have considered the grounds on the application, grounds of opposition, the affidavit evidence tendered, the rival submissions by counsel, superior court decisions cited thereon, and the applicable law, and come to the following conclusions: a. Before considering whether or not, the applicant has met the threshold for review, I consider it necessary to dispose of one preliminary matter. Although the application before the Court is expressly founded on the discovery of new and important evidence, counsel for the Applicant, in the course of his submissions, also urged the Court to find that there was an error apparent on the face of the record. That KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 10

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issue was neither pleaded in the application nor supported by the Applicant's affidavit. It is settled law that parties are bound by their pleadings and that submissions cannot introduce a new ground upon which a court is invited to determine a dispute. Accordingly, this Court shall confine itself to the sole ground upon which the application is founded, namely, the alleged discovery of new and important evidence. b. There is another matter that merits brief consideration. The Respondents contended that the present application has been overtaken by events following the dismissal of the Applicant's application for leave to appeal out of time before the Court of Appeal. I am unable to agree with that position as the Applicant had not filed an appeal, but merely sought for leave to do so out of time. The refusal of that application did not by itself oust this Court's jurisdiction to entertain an application for review under Section 80 of the Civil Procedure Act. In any event, the application must ultimately stand or fall on whether it satisfies the requirements of Order 45 Rule 1 of the Civil Procedure Rules. c. The Court's jurisdiction to review its own decision is conferred by Section 80 of the Civil Procedure KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 11

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Act and circumscribed by Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides 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 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.” Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides that: “1. (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 KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 12

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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 sufficient record, reason, or for desires any to other 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.” Insofar as is relevant to this application, Order 45 Rule 1 permits a review where an applicant demonstrates the discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his or her knowledge or could not be produced at the time the decree or order was made. d. In the case of Rose Kaiza & Another versus Angelo Mpanju Kaiza [2009] eKLR, the Court of Appeal emphasized that not every new fact or piece of evidence will justify a review. The Court stated: KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 13

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“An application for review under Order 44 Rule 1 must be clear and specific on the basis upon which it is made. The motion before the superior court was based on the discovery of new facts. However, it is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed. In the words of the rule itself, it is “………discovery matter or of new evidence and which, important after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree with approval was passed…….” e. The Court further cited the commentary in Mulla, Code of Civil Procedure (15th Edition), that before a review is granted on the ground of discovery of new evidence, the applicant must demonstrate that he acted with due diligence and that the evidence was not within his knowledge or could not have been produced at the hearing. The Court stated: “The construction and application of that provision has been discussed in many previous decisions, but we shall take it KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 14

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from the commentary by Mulla on similar provisions of the Indian Civil Procedure Code, 15th Edition at page 2726, thus: “Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but petitioner it had was not found acted that the with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that party to apply discovery matter of which for any a review, but new was entitles and not a the important within the knowledge of the party when the decree was made.” KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 15

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f. The reason for that strict approach was explained by the Court of Appeal in the case of D.J. Lowe & Company Limited –vs- Banque Indosuez Civil Appeal No. NAI 217 of 1998 [1998] eKLR, where it held: "Where such a review application is based on fact of the discovery of fresh evidence, the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing." g. The question, therefore, is whether the Applicant herein has demonstrated that the letter dated 2nd April 2000 constitutes new and important evidence within the meaning of Order 45 Rule 1. The Applicant contends that the letter clarifies that her late father intended the rice holding to be jointly held by her and her late mother, and that had the letter been produced during the hearing, the Court would have reached a different conclusion. She further KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 16

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attributes the failure to produce the letter to her previous advocate. With respect, that argument does not satisfy the requirements of Order 45 Rule 1. h. The Applicant does not state that she only became aware of the existence of the letter after the Judgment was delivered. Neither does she contend that the letter could not, despite the exercise of due diligence, have been produced during the hearing. On the contrary, she both in her supporting affidavit and written document submissions had been acknowledge availed to her that the previous advocate, who inadvertently failed to produce it before the Court. That admission is significant, as it demonstrates that the letter was in existence, was within the Applicant's knowledge, and was available during the hearing of the substantive proceedings. i. The complaint, therefore, is not that the evidence was discovered after judgment, but that it was omitted from the record. Those are two distinct concepts. A document which was available to a party throughout the proceedings, but was not produced cannot, without more, become "new and important evidence" merely because judgment has since been delivered. KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 17

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j. The Applicant urged the Court not to visit upon her the mistake of her previous advocate. While courts have, in appropriate cases, excused mistakes of counsel, such an explanation cannot override the express requirements of Order 45 Rule 1. The law requires an applicant to demonstrate that the evidence could not, despite the exercise of due diligence, have been produced at the hearing. That burden has not been discharged in this case. k. Even assuming that the letter dated 2 nd April 2000 is important, importance alone is not the test. As the Court of Appeal observed in the case of Rose Kaiza & Another versus Angelo Mpanju Kaiza (supra), it is not every new fact or piece of evidence that warrants a review. The applicant must also demonstrate that the evidence was not within his or her knowledge or could not, with the exercise of due diligence, have been produced before the Court. The Applicant has not met that threshold. l. In the end, I find that the present application is an attempt to introduce evidence that was available, but not tendered during the hearing of the substantive proceedings. To allow a review in those circumstances would be to extend the Court's review jurisdiction beyond the limits set by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 18

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the Civil Procedure Rules, contrary to the guidance of the Court of Appeal in the above cited cases of Rose Kaiza [supra] and D.J. Lowe [supra]. Accordingly, I find that the Applicant has failed to establish a proper basis or meet the threshold for review. m. Under Section 27 of Civil Procedure Act Chapter 21 of Laws of Kenya, cost follow the event unless where ordered otherwise by the court on good grounds. In this application, I find no reasonable cause to deviate from that edict and the respondents are awarded costs. 21. In view of the foregoing determinations on the notice of motion dated 31st October 2024, the court finds and orders as follows: a. That the application is without merit and is dismissed. b. That the Applicant to meet the Respondents’ costs. It is so ordered. KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 19

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DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. S. M. Kibunja EL C JUDGE In the presence of: Applicant – Mr. Mwangi. 1st & 2nd respondents – M/s Karimi for Kiongo. 3rd_ 5th respondents – 5th Respondent. Kinyua/Charles - Court Assistant S. M. Kibunja EL C JUDGE KERUGOYA ELCL JR NO. E003 OF 2023 (RULING) 20

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