Agenga v Sikhembo & 2 others

5. He states that reinstating the 3rd Respondent onto the land would render the decree in the said case nugatory and would adversely aect persons who are not parties to the present proceedings but who lawfully acquired title after subdivision of the original parcel. He also relies on proceedings in Port Victoria MC ELC No. E014 of 2024, where the title allegedly held by the 3rd Respondent was declared illegal, and argues that the Court’s orders would prejudice innocent third parties who were not heard. 6. According to the Applicant, he has since amended his plaint to remove parcel No Bunyala/ Mudembi/2695, which no longer exists, and has consequently removed the 3rd Defendant from the suit. He therefore urges the Court to review its decision and grant stay of execution in the interests of justice. The Respondent’s Case 7. The application is opposed by the 3rd Respondent, Nicholas Okada Wanyama, through a Replying Adavit sworn on 26th June 2026. He contends that the application is frivolous, incompetent, an abuse of the court process and intended to mislead the Court. 8. He argues that the Applicant cannot purport to protect the interests of unnamed third parties without their authority or consent and therefore lacks the requisite locus standi to seek orders on their behalf. 9. The 3rd Respondent further deposes that although the application is presented as one for review based on discovery of new evidence, the matters relied upon were all within the Applicant’s knowledge long before the Court rendered its ruling. 10. He states that the Applicant personally participated in the subdivision and transfer of parcel No Bunyala/Mudembi/2695, was aware of the issuance of the new titles before ling the suit in 2023, and was also a party to the proceedings in PORT VICTORIA MC ELC NO E014 of 2024. He therefore contends that none of the alleged discoveries qualies as new and important evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. 11. The 3rd Respondent further avers that the history of the dispute demonstrates that the proceedings before the Budalang’i Land Disputes Tribunal were instituted by Francis Beddar Agenga, culminating in eviction orders issued on 27th February 2003. 12. He maintains that those orders were never lawfully implemented until January 2026, when the Applicant allegedly procured fresh eviction orders without notice to the Respondents and unlawfully evicted him. He further asserts that the Tribunal proceedings had been instituted against persons who were already deceased, thereby rendering the resultant orders illegal and incapable of enforcement. 13. It is also the 3rd Respondent’s case that any decree issued in Busia CMLC NO 17 of 2000 ought to have been executed within the statutory period and that the Applicant has failed to explain the long delay before purporting to implement it. He contends that the Applicant lacked the legal capacity to execute eviction orders arising from proceedings commenced by Francis Beddar Agenga without obtaining a grant of representation or proper authority. 14. The 3rd Respondent therefore submits that the Applicant has failed to satisfy the conditions for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, as no discovery of new evidence, error apparent on the face of the record, or other sucient reason has been demonstrated. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5914/eng@2026-09-24 2

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15. He further contends that the Applicant has not established substantial loss, exceptional circumstances or any basis warranting stay of execution, and that granting the orders sought would eectively sanitize an unlawful eviction and prejudice the Respondent. 16. Accordingly, the 3rd Respondent prays that the Notice of Motion dated 29th May 2026 be dismissed with costs. Analysis And Determination 17. Having considered the Notice of Motion dated 29th May 2026, the adavits and the rival positions taken by the parties, this court is of the view that the following issues arise for determination: a. Whether the Applicant has satised the legal requirements for review of this Court’s ruling delivered on 22nd April 2026. b. Whether the Applicant has established sucient grounds to warrant an order of stay of execution of the ruling delivered on 22nd April 2026 pending the determination of the suit or further orders of the Court. c. Who should bear the costs of the application. On whether the Applicant has satised the legal requirements for review of this Court’s ruling delivered on 22nd April 2026 18. The jurisdiction of this Court to review its own orders is conferred by Section 80 of the Civil Procedure Act and implemented through Order 45 Rule 1 of the Civil Procedure Rules. 19. 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 t.” 20. Order 45 Rule 1 of the Civil Procedure Rules further provides that: (1) (2) “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 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5914/eng@2026-09-24 3

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21. These provisions permit a court to review its decision where an applicant demonstrates: (i) 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 at the time the order was made; (ii) an error apparent on the face of the record; or (iii) any other sucient reason. The application must also be made without unreasonable delay. 22. The Court of Appeal clearly stated the principles governing review in the case of National Bank Of Kenya Limited Vs Ndungu Njau [1997] KECA 389 (KLR) that: “ A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be a sucient ground for review that another judge could have taken a dierent view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law.” 23. In the present application, the Applicant principally relies on the ground of discovery of new and important evidence. He contends that he only discovered after the ruling that the original parcel Bunyala/Mudembi/2695 had been subdivided into parcels Bunyala/Mudembi/3599 and 3600 and transferred to third parties. He further asserts that he subsequently learnt of the execution of a decree in Busia CMLC NO 17 of 2000, as well as proceedings in Port Victoria MC ELC NO E014 of 2024, which allegedly declared the 3rd Respondent’s title illegal. According to him, these matters demonstrate that the orders granted by this Court would adversely aect innocent third parties and ought therefore to be reviewed. 24. The burden, however, rests upon the Applicant to demonstrate that these matters were not within his knowledge despite the exercise of due diligence before the impugned ruling was delivered. Mere assertion that evidence has been discovered is insucient. 25. From the material placed before the Court, the Applicant has not discharged that burden. The 3rd Respondent has deponed, without any rebuttal, that the Applicant personally participated in the subdivision and transfer of parcel NO. Bunyala/Mudembi/2695, was aware of the resultant titles before instituting this suit in 2023, and was himself a party to the proceedings in Port Victoria MC ELC NO E014 of 2024. If indeed those assertions are true, then the matters now relied upon cannot by any stretch be described as newly discovered evidence. 26. Moreover, even assuming that the Applicant only appreciated the legal implications of those facts after the ruling was delivered, that does not satisfy the threshold under Order 45 Rule 1. Review is concerned with the discovery of new evidence, not a party’s subsequent realization of the signicance of facts already within his knowledge. 27. The Applicant has also not pointed to any error apparent on the face of the record. He does not identify any patent mistake, accidental slip, or self-evident error in the ruling of 22nd April 2026. Instead, he invites the Court to reconsider the factual basis upon which it reached its decision in light of matters that he contends ought to have been considered. Such an invitation goes beyond the scope of review and is, in substance, an attempt to persuade the Court to reach a dierent conclusion on the same issues. 28. Likewise, the Applicant has not demonstrated any other sucient reason warranting review. His reliance on the interests of third parties and the subsequent amendment of the plaint does not invalidate the correctness of the ruling as at the date it was delivered. A review must be based on https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5914/eng@2026-09-24 4

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circumstances existing within the parameters of Section 80 of the Civil Procedure Act and Order 45 Rule 1. It cannot be used to accommodate subsequent developments in the litigation or to cure omissions that could have been addressed before the impugned decision was rendered. 29. The Court further notes that the Applicant states that he has since amended the plaint by removing parcel No Bunyala/Mudembi/2695 and deleting the 3rd Defendant from the proceedings. While amendment of pleadings may alter the issues for trial, it does not, without more, constitute a statutory ground for review of an earlier ruling. If anything, the amendment demonstrates that the Applicant has elected to reshape his case prospectively rather than establish that the Court’s earlier decision was founded on a reviewable error. 30. In the end, the Court is not persuaded that the Applicant has established the existence of any new and important evidence that could not, with due diligence, have been produced earlier, nor has he demonstrated an error apparent on the face of the record or any other sucient reason to justify review. The application therefore falls short of the threshold prescribed under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 31. Accordingly, I nd that the Applicant has failed to satisfy the legal requirements for review of this Court’s ruling delivered on 22nd April 2026. On whether the Applicant has established sucient grounds to warrant an order of stay of execution of the ruling delivered on 22nd April 2026 32. The Applicant also seeks an order of stay of execution of this Court’s ruling delivered on 22nd April 2026 pending the determination of the application. The grant of an order of stay of execution is discretionary and is governed by Order 42 Rule 6 (2) of the Civil Procedure Rules, which provides that: “ No order for stay of execution shall be made under subrule (1) unless – (a) the court is satised that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 33. Stay of execution requires an applicant to demonstrate that he stands to suer substantial loss if stay is denied, that the application has been made without unreasonable delay, and that such security as the Court may order has been furnished where applicable. 34. In the case of James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the court provided that: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.” 35. In the present case, the Applicant contends that execution of the ruling would result in the reinstatement of the 3rd Respondent onto land that has since been subdivided and transferred to third parties, thereby prejudicing innocent proprietors and rendering the decree in Busia CMLC NO 17 of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5914/eng@2026-09-24 5

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2000 nugatory. He also argues that the orders may conict with the decision in Port Victoria MC ELC NO E014 of 2024. 36. The Court is, however, not persuaded that these assertions amount to substantial loss within the meaning of Order 42 Rule 6. First, the alleged prejudice is largely predicated on the interests of third parties who are not parties to these proceedings. As correctly argued by the 3rd Respondent, those persons have neither approached the Court nor authorized the Applicant to litigate on their behalf. Consequently, any alleged prejudice to them cannot, without more, constitute substantial loss to the Applicant himself. 37. Further, the Applicant has not demonstrated that he will suer any irreparable or substantial prejudice incapable of being addressed through the normal processes of the Court if stay is declined. His apprehension that the Court’s orders may aect third parties or conict with previous proceedings remains speculative and unsupported by evidence demonstrating actual loss to him. 38. The Court also observes that the Applicant has neither oered nor addressed the issue of security for the due performance of the orders sought to be stayed. Although the requirement for security may, in appropriate land matters, be dispensed with depending on the circumstances of the case, such discretion only arises after the Applicant has rst established a proper basis for the grant of stay. In the present case, no such basis has been laid. 39. Accordingly, the Court nds that the Applicant has failed to demonstrate sucient grounds to warrant the exercise of this Court’s discretion in his favour. The prayer for stay of execution is therefore devoid of merit and is declined. On who should bear the costs of the application? 40. Costs ordinarily follow the event under Section 27 of the Civil Procedure Act, and having found the application to be devoid of merit, the Applicant shall bear the costs of the application. Final Orders And Disposition 41. 42. In the result, having carefully considered the Notice of Motion dated 29th May 2026, the adavits on record, the rival submissions by the parties, and the applicable law, the Court nds that the application is devoid of merit. Accordingly, the Court makes the following orders: a. The Notice of Motion dated 29th May 2026 is hereby dismissed in its entirety. b. The prayers for review of this Court’s ruling delivered on 22nd April 2026 and for stay of execution are hereby declined. c. The Applicant shall bear the costs of the application. It is so ordered. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT ON THIS 24TH DAY OF SEPTEMBER 2026. C. MUGAMBI JUDGE 24TH SEPTEMBER 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5914/eng@2026-09-24 6

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