Chacha v Sereria & another (Enviromental and Land Originating Summons E025 of 2021) [2025] KEELC 6540 (KLR) (1 August 2025) (Ruling)
Neutral citation:
[2025] KEELC 6540 (KLR)
Republic of Kenya
Enviromental and Land Originating Summons E025 of 2021
MN Kullow, J
August 1, 2025
Between
Joseph Marwa Chacha
Applicant
and
Isaya Tatiro Sereria
1st Respondent
Samwel Wilson Sereria (Sued as the legal representative of the Estate of Sereria Boroye Sinda Alias Siriria Boroyi)
2nd Respondent
Ruling
1.The Applicant filed a Notice of Motion dated 28th October, 2022 filed under certificate of urgency, seeking the following orders against the Respondents: -a.Spent.b.Spent.c.That this Honourable Court be pleased to issue an order reviewing its judgment delivered on the 21.07.2022 in terms of order (c) of the judgment to read that, “an order is hereby issued that the applicant be registered as the proprietor of a portion measuring 5.3 Acres of Bukira / Bwisaboka/10943 registered in the name of the 1st respondent herein.”d.That this Honourable Court be pleased to issue an order reviewing its judgment delivered on the 21.07.2022 further in terms of order (d) of the judgment to read that “the 1st respondent is hereby ordered to execute all the necessary transfer instruments to facilitate the transfer and all registration of a portion of land parcel No. Bukira / Bwisaboka/10943 measuring 5.3 Acres in the name of the applicant within 60 days from the date of the judgment. Further, in default, the Deputy Registrar of this honourable court be at liberty to execute the transfer instruments in favour of the applicant.e.That this Honourable Court be pleased to issue an order reviewing its judgment delivered on the 21.07.2022 further in terms of order (e) for the land parcel no. to read L.R. No. Bukira / Bwisaboka/10943 in place of L.R. No. Bukira / Bwisaboka/77.f.That costs of this application be provided for.
2.The application is based on the 13 grounds on its face thereof and the Supporting Affidavit sworn on even date by the applicant.
3.The Applicant deponed that he instituted the instant suit seeking adverse possession in respect of parcel No. Bukira / Bwisaboka/77.
4.The matter was heard and determined vide the judgment of this court issued on the 21.07.2022; and whose effect was to allow the applicant’s claim and grant the orders sought in the originating summons.
5.It is however his claim that sometimes on 23.08.2022, he conducted a search on the suit parcel and it is then that he discovered that sometimes on 26/07/2022, the suit parcel No. Bukira / Bwisaboka/77 had since been subdivided.
6.That as a result of the subdivision of the original suit parcel; the 1st respondent then became the registered owner of the parcel of land No. Bukira / Bwisaboka/10943 measuring 5.2 Ha.
7.He thus contends that due to the said changes on subdivision and registration, he is unable to execute the decree as issued in respect to parcel No. Bukira / Bwisaboka/77 which is no longer in existence.
8.He therefore argues that it is imperative for this court to review its order and decree to reflect land parcel No. Bukira / Bwisaboka/10943, for purposes of execution of the decree.
9.He maintained that the application is based on the new evidence that could not have been discovered during the pendency of the suit, made without any unreasonable delay.
10.He thus urged the court to allow the application in the interest of justice.
11.The application was not opposed. Despite the respondents being served with the application and a return of service duly filed to that effect; the respondents neither filed any response nor attended court during the hearing of the application.
12.When the present application came up for interpartes hearing on 08.12.2022; counsel for the applicant, Ms. Apondi informed the court that the application was unopposed and urged the court to allow the same as prayed. I will therefore proceed to consider the application as hereunder;
13.I have carefully considered the applications and the grounds therein, the supporting affidavit in support together with the annexures and it is my considered opinion that the main issue arising for determination is whether the applicant has met the standard to warrant the review and/or setting aside of the judgment delivered on 21.07.2022.
14.The grounds for review and/or setting aside of an order of the court are now well settled. The court in determining whether or not to grant such orders ought to exercise such discretionary powers judiciously taking into account the circumstances of each case.
15.Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules outline the statutory provisions for the grant of orders of review. While section 80 empowers the court to make orders for review, Order 45 Rule 1 sets out the jurisdiction; providing the scope and foundation of review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.
16.Section 80 of the Civil Procedure Act states as follows: -
17.Order 45 rule 1 on the other hand provides as follows: -
18.The above sections thus envisage 3 instances where an order of review and/or setting aside may be issued; discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason. In determining the merits of the present application, this court is therefore called upon to look at the circumstances of the case and determine whether any of the grounds outline have been satisfactorily demonstrated.
19.The Applicant’s main ground for review is anchored on the discovery of new and important matter or evidence. She contends that she only learnt that the original suit parcel had since been subdivided and registered in the name of the 1st respondent sometimes around 26/07/2022, after the issuance of the judgment and decree herein. He annexed a copy of the certificate of official search in support of the said averments.
20.In defining what amounts to discovery of new and important matter or evidence; the Court of Appeal in the case of Rose Kaiza –vs- Angelo Mpanjuiza [2009] eKLR, while considering an application for review on the ground of new evidence and held that: -
21.Guided by the above decision and the statutory provisions; it is clear that the onus is on the applicant to demonstrate that the new and important matter or evidence was not within his knowledge even after the exercise of due diligence and hence the same could not be produced earlier when the order was being made.
22.I have carefully considered the grounds relied on in the application and the certificate of official search annexed to the supporting affidavit and I do note that indeed the subdivision of the original parcel of land No. Bukira / Bwisaboka/77 was done on 22.07.2022 after the delivery of the judgment of this court.
23.There is therefore no way that the applicant herein could have discovered the said information on the subdivision and the subsequent registration of the new parcel No. Bukira / Bwisaboka/10943 in the name of the 1st respondent herein either before or at the time of making the order.
24.In view of the foregoing, it is the finding of this court that the applicant has sufficiently proved his claim on review of the judgment issued and dated on 21.07.2022 to the required standard to warrant the grant of the orders sought in the application.
Costs
25.On the issue of costs; the general rule is that costs shall follow the event unless the court directs otherwise. It this present case, having held that the applicant has satisfactorily proved his claim, I find that he is entitled to the costs of the application.
Conclusion
26.In view of the foregoing, I accordingly find that the Application dated 28th October, 2022 is merited and is hereby allowed on the following terms: -i.An order be and is hereby issued reviewing the judgment of this court delivered on the 21.07.2022 in terms of order (c) of the judgment to read that, “An order is hereby issued that the applicant be registered as the proprietor of a portion measuring 5.3 Acres of Bukira / Bwisaboka/10943 registered in the name of the 1st Respondent herein”ii.An order be and is hereby issued reviewing the judgment of this court delivered on the 21.07.2022 further in terms of order (d) of the judgment to read that “the 1st respondent is hereby ordered to execute all the necessary transfer instruments to facilitate the transfer and all registration of a portion of land parcel No. Bukira / Bwisaboka/10943 measuring 5.3 Acres in the name of the applicant within 60 days from the date of the judgment. Further, in default, the Deputy Registrar of this honourable court be at liberty to execute the transfer instruments in favour of the applicant.iii.An order be and is hereby issued reviewing the judgment of this court delivered on the 21.07.2022 further in terms of order (e) for the land parcel no. to read L.R. No. Bukira / Bwisaboka/10943 in place of L.R. No. Bukira / Bwisaboka/77.iv.Costs of this application be borne by the Respondents.It is so ordered!
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 1ST DAY OF AUGUST, 2025.MOHAMED N. KULLOWJUDGEIn presence of; -for the Plaintifffor the DefendantPhilomena W. Court Assistant