Mburu & 34 others v National Land Commission & 8 others

RULING 1. The ruling is in respect of a Notice of Motion dated 18th March 2026, by the 2nd Plainti/Applicant seeking the following orders; 1. Spent. 2. That this Honourable Court be pleased to grant a stay of the taxation of the Bill of Costs dated 3rd February, 2026 xed for hearing on 23rd March,2026, before this Honourable Court, pending the hearing and determination of this application. 3. That this Honourable Court be pleased to review its Ruling dated and delivered on 2nd December, 2025, to the extent that the same aects the 2nd Plainti/Applicant, Serah Wangari Muroki, and in particular to the extent that costs were awarded against her jointly and/or severally with the other Plaintis/Applicants. 4. That this Honourable Court be pleased to order the removal of Serah Wangari Muroki as the 2nd Plainti/Applicant from these proceedings, with eect from the date of her written withdrawal request dated 6th July, 2025. 5. That consequent upon prayers 3 and 4 above, this Honourable Court be pleased to set aside orders as to costs as against the 2nd Plainti/Applicant, Serah Wangari Muroki, in respect of the Ruling delivered on 2nd December ,2025, or any other order made in these proceedings, and that the Bill of Costs dated 3rd February, 2026 be struck out as against her. 6. That the costs of this application be provided for. 7. Such further and/or other relief as this Honourable Court may deem t and just to grant. 2. The application is based on the supporting adavit of Serah Wangari Muroki dated 18th March, 2026, who deponed that she had initially been represented jointly with the other plaintis by Mbito & Co. Advocates. She further stated that on 6th July, 2025, she formally instructed her advocates in writing to withdraw her name from the suit and paid a Kshs. 10,000/- facilitation fee for them to le the necessary application for her removal. Although Mbito & Co. Advocates acknowledged receipt of her instructions and the fees on 8th July, 2025, they neglected and failed to le any application for her removal before or after the court delivered its ruling. 3. It was the Applicant’s disposition that on 2nd December, 2025, the court struck out the suit with costs and she was unaware that her name had not been removed. She only discovered on 3rd March, 2026, when a Mention Notice and Bill of Costs were left at her property by unknown persons that her name had remained on record and that taxation of the Bill of Costs was scheduled for 23rd March, 2026. 4. The Applicant expressed apprehension that without a stay of taxation, a Certicate of Costs would issue against her, creating an enforceable decree and leading to execution against her and yet the application is still pending. It was her case that the failure of her former advocate to act on her instructions has resulted in her wrongful exposure to costs. 2nd Plainti/Applicant’s Submissions 5. Counsel for the 2nd Plainti/Applicant led submissions dated 15th June, 2026, and identied the following issues for determination; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5919/eng@2026-09-29 2

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a) Whether this application is urgent and merits priority hearing b) Whether there is sucient cause to grant a stay of the taxation of the Bill of costs pending the hearing and determination of this application c) Whether this Honourable Court has jurisdiction to review the Ruling of 2nd December, 2025 to the extent that it aects the Applicant, on the grounds of mistake, inadvertence and/or negligence of her former advocate, and d) Whether, upon review, the Applicant ought to be removed from these proceedings retrospectively with eect from 6th July, 2025 and the costs and Bill of costs set aside as against her. 6. Counsel for the Applicant submitted that once taxation concludes and a Certicate of Costs is issued, it crystallizes into an enforceable decree, rendering any subsequent review or removal of the Applicant’s name from the proceedings nugatory. 7. Counsel relied on the case of Philip Ayaya Aswani v Betty Kamara Aswani [2013] eKLR, where the court held that urgency in interlocutory applications is determined by the potential for irreversible harm if the matter is not heard forthwith, and further argued that the Applicant faces imminent risk of a Certicate of Costs being issued against her in circumstances where she ought never to have been subjected to the order of costs. 8. Mr. Mugu relied on Order 42 Rule 6 of the Civil Procedure Rules, 2010, and the case of Kenya Hotels Ltd v Oriental Commercial Bank Ltd [2019] eKLR, and submitted that the Applicant has satised the criteria by acting within 15 days of learning of the taxation, facing real nancial prejudice of Kshs. 962,375/-, and showing that the balance of convenience favors a stay since the Respondents can still tax costs against the other plaintis. Counsel further cited the cases of Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Equity Bank Limited v West Link Mbo Limited [2013] eKLR. 9. On the issue of review, counsel relied on Order 45 Rule 1 of the Civil Procedure Rules, 2010, and the case of Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, where the Court of Appeal armed that the court retains jurisdiction to review decisions made through no fault of the party in circumstances that occasion injustice. The inherent power is to prevent abuse of the court process and protect clients from advocate negligence which is codied under Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap 21), as armed by the Supreme Court Case of Hassan Ali Joho & Another v Suleiman Said Shahbal & Others [2014] eKLR. 10. To further fortify the principle that an innocent party should not be penalized for an advocate’s omission, Counsel relied on the cases of Patel v East Africa Cargo Handling Services Ltd [1974] EA 75; Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others [2010] eKLR; Shah v Mbogo [1967] EA 116 and Article 50(1) of the Constitution of Kenya, 2010. 11. Relying on Order 1 Rule 9 of the Civil Procedure Rules, 2010, counsel submitted that no suit should be defeated by misjoinder or non-joinder, and the court may strike out parties at any stage, and relied on the case of Kenya National Examinations Council v Republic [1997] eKLR, where the court held that the court’s overriding duty is to do justice between the parties, and that procedural rules are handmaidens of justice not its mistress. 12. Counsel further relied on the case of Savings & Loan (K) Limited v Trust Bank Ltd & Others [2009] eKLR, and submitted that setting aside the costs order against the Applicant will not prejudice the Respondents, as enforcing the same would constitute an abuse of court process. Counsel cited the case https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5919/eng@2026-09-29 3

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of Republic v Kenya Anti-Corruption Commission & Another Ex Parte Kamlesh Mansukhlal Damji Pattni [2010] eKLR, and urged the court to allow the Application as prayed. 2nd and 8th Respondents’ Response 13. The 2nd and 8th Respondents led a replying adavit dated 22nd March, 2026 sworn by John Kamau Ndere and deponed that the Applicant remained a party to the suit when the striking out order was delivered on 2nd December, 2025, thereby rendering the pending Bill of Costs scheduled for taxation on 23rd March, 2026, both lawful and legitimately on record. 14. The Respondent further stated that the Applicant was personally served with the Bill of Costs on 5th March, 2026, and an Adavit of Service was led on 11th March, 2026. Further, an Adavit on record conrmed that the Applicant's previous advocates had refused service when approached by the Respondents' counsel. 15. The Respondent also stated that the Applicant’s current advocates should have sought leave of court or consent of Applicant’s previous Advocates to act for the Applicant in terms of Order 9 Rule 9 of the Civil Procedure Rules since the present Advocates came on record after the delivery of the ruling that struck out the case. 16. According to the Respondent, the Applicant despite allegedly instructing her advocates to withdraw her name in July, 2025, the Applicant had failed to demonstrate any personal follow-up on the matter to ensure that her instructions were followed before delivery of the Ruling on 2nd December, 2025. Further, courts have on numerous occasions stated that it is not enough for a party to blame their advocates for inaction; they must demonstrate they took steps to ensure their instructions were followed and demonstrate to the court that they did so. The Respondent urged the court to dismiss the Application with costs. Analysis and Determination 17. The issues for determination are as to whether the Applicant has satised the legal threshold for review of the ruling dated 2nd December, 2025, stay of taxation and retrospective removal of the Applicant from the proceedings. 18. The Applicant seeks a stay of taxation of the Bill of costs, review of the ruling delivered on 2nd December, 2025 and removal from the proceedings with eect from 6th July, 2025 together with setting aside of the costs order against her. The prayers are based on the fact that she instructed her former advocate to le an application to strike her name from the suit, paid facilitation fees but the advocate failed to le the application before the Court delivered its ruling. 19. On whether the Applicant has satised the threshold for review of the ruling dated 2nd December, 2025. Order 45 Rule 1 of the Civil Procedure Rules sets down the criteria for review applications as follows: 1. Application for review of decree or order: 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5919/eng@2026-09-29 4

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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. 2. 20. 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. In the case of Evan Bwire V Andrew Aginda, Civil Appeal No. 147 of 2006 citing with approval the case of Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR the Court of Appeal held as follows: “ An application for review will only be allowed on strong grounds particularly if its eect will amount to re-opening the application or case afresh. In other words, I nd no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.” 21. The Applicant relied on the negligence and inadvertence of her former Advocate to le an Application to strike her name from the suit as the reason for review. S It was the Applicant’s case that she gave express written instructions on the 6th July, 2025, to be removed from the proceedings and paid the fees, but the advocate failed to act. 22. The Respondents contended that the Applicant has not demonstrated any eorts made over ve months to ascertain whether her instructions had been implemented before the ruling of 2nd December, 2025 was delivered, and merely blaming her former Advocate is insucient reason without evidence that the client took steps to safeguard her interests. 23. In the case of Eldoret Grains Limited vs Gilbert Kiptoo Kipkoech & 14 Others (Civil Application 108 of 2019) [2021] KECA 273 (3 December 2021) (Ruling) the Court of Appeal cited with approval the case of Rajesh Rughani vs Fifty Investment Ltd & Another (2005) eKLR and held that : “ It is not enough simply to accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not excusable mistake which the court may consider with some sympathy.” 24. The Applicant has not met the threshold for review as she has not demonstrated the existence of new evidence which she could not have gotten even after exercising due diligence. The Applicant had the intention communicated to the Advocate which was not acted upon, hence it remained an intention as counsel neither led an application nor led an adavit in support of this application conrming that he had been given such instructions and which he failed to act upon. 25. The Applicant’s remedies therefore lie elsewhere and not through an application for review. Having found that the Applicant has not met the threshold for review, the application for removal from the suit cannot be done retrospectively. It follows that there would be nothing pending to be done apart from the taxation of the Bill of Costs. The Applicant remained a party to the suit to the suit at the time the suit was struck out with costs, and is still a party for purposes of taxation of the Bill of Costs. The best that the Applicant can do is to negotiate with the Respondents if she so wishes. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5919/eng@2026-09-29 5

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26. Accordingly, the Notice of Motion dated 18th March, 2026, lacks merit and is therefore dismissed with costs. The taxation of the Bill of costs shall proceed. DATED, SIGNED AND DELIVERED AT LIMURU THIS 29TH DAY OF SEPTEMBER, 2026. HON. LADY JUSTICE (DR.) M. A. ODENY ELC JUDGE In the Presence of: Mr. Andati for Applicants Mr. E. N. Mugu for 2nd and 5th Respondents Ms. Maganga holding brief for Motari for 3rd and 7th defendants Mr. Gitonga– Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5919/eng@2026-09-29 6

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