Raghwani & 2 others v Kerai (Legal Representative of the Estate of Kanji Mavji Kerai) (Enviromental and Land Originating Summons E042 of 2021) [2025] KEELC 7684 (KLR)

c. That this Honourable Court be pleased to review its decree made on 9th February 2023. d. That the Respondent/Applicant be authorized to sell his 25% undivided share in that parcel of land known as LR NO 209/4593/2 to a Third Party, one Jim Wachira Kabiru that has made a more favourable ofier than the valuation made pursuant to the decree issued herein. e. That this Honourable Court be pleased to make such orders as it may deem necessary in circumstances to give efiect to order Number 3 herein above. f. That costs of this application be provided for. 3. The application is premised on grounds on its face and on the Respondent’s supporting afidavit. He represents the estate of Kanji Mavji Ramji and avers that pursuant to this Court’s Decree, the estate of Kanji Mavji Ramji has ofiered to purchase the 75% undivided shares of the Applicants’ with no success. Further, that the estate has received an ofier from one JIM Wachira Kabiru to purchase 25% of the undivided share of the subject parcel at Kshs. 62,500,000/= and it has accepted the ofier. He contends that the estate is entitled to receive the best price obtainable for the 25% undivided share in the subject property and it is only fair that the Decree issued on 9th February 2023 be reviewed to allow the estate to dispose of their undivided share to the said Third Party. 4. He also claims that at the time of filing of the Originating Summons in this matter, the 1st Applicant deponed at paragraph 11 of his afidavit that the Applicants were holding rents of over Kshs. 10,450,560/= belonging to the estate of Kanji Mavji Kerai thus in view of the unaddressed issue of the rents held by the Applicants, it is only fair and just that the Decree be reviewed to capture the said issue. 5. The Applicants filed Grounds Opposition to the application. They contend that it is an abuse of court process, vexatious and frivolous and does not satisfy the conditions for the review. Further, that this Court’s Ruling of 14th November 2024 has already been executed thus the application is overtaken by events. They reiterate that the application is an attempt to continue delaying justice and the expeditious conclusion of this matter. 6. The application was canvassed by way of written submissions Submissions 7. The Respondent submits that he has established grounds that warrant review of the Decree dated 9th February 2023, because if he is forced to sell 25% share to the Respondent, he stands to lose ksh. 22,500,000/= which does not align with section 96 (1) (c) of the Land Registration Act. 8. He also relies on the case of ARJ Capital Limited v Njeru & 3 Others (ENVIRONMENT & LAND CASE E041 OF 2022) [2024] KEELC 323 (KLR) (24 January 2024) (Ruling), to submit that the application is not opposed as Grounds of Opposition filed by the Applicants only reply to the application on point of law and not facts. 9. On their part, the Applicants submit that they have established that the Orders issued on 16th April 2024 are valid, just and proper and execution process levied against the Respondent is lawful on all facets thus the Respondent does not warrant discretion for review. To this end, they rely on the case of Nelliwa Builders & Civil Engineers v Kenyatta National Hospital [2003] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7684/eng@2025-11-06 2

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Analysis and Determination 10. Upon consideration of the instant Notice of Motion application including the supporting afidavit, Grounds of Opposition and submissions, the only issue for determination is whether the Decree issued on 9th February, 2023 should be reviewed. 11. The Respondent seeks a review of this Court’s decree issued more than two (2) years ago, so that he can be allowed to sell 25% share of the suit parcel to a third party instead of giving the Applicant’s priority as ordered in the said Decree. The Applicants’ opposed the instant application and contend that the application is filed late in the day and that they had already commenced execution pursuant to this Court’s Ruling of 14th November 2024, in which the Deputy Registrar of this Court was directed to execute transfer of 25% share of the suit parcel in their name. 12. The legal provisions governing review are contained in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides that: “ Any person who considers himself aggrieved; 13. 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.” While Order 45 of the Civil Procedure Rules stipulates that: “ (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 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 suficient 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) 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/2025/7684/eng@2025-11-06 3

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14. The Court of Appeal stated as follows in Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] eKLR; “ ….An order for review is restricted to parameters set out by the law..” 15. Further, in Afapack Enterprises Limited v Punita Jayant Acharya (Suing as the Administrator of the Estate of the late Suchila Anatrai Raval) [2018] eKLR the Court of Appeal observed as follows while agreeing that a delay of nine (9) months in filing an application for review was inordinate: “ It is also an important requirement that the application for review should be made without unreasonable delay….” 16. In this instance the Respondent seeks to review the Decree more than two years after it was issued. Except for the explanation that he has gotten a buyer for the 25% stake in the suit property that is ofiering more money, he has not provided any suficient reason on why he delayed in seeking a review of the said Decree. For an application for review to succeed the Applicant has to demonstrate that there was discovery of new and important evidence which was not within his knowledge at the time of the original decision was made. Further, that there has to proof that there is an error apparent on the face of record or any other suficient reason. The application should also be filed without unreasonable delay. 17. Based on the facts as presented while relying on the legal provisions I have quoted including associating myself with decisions cited, I find that the Respondent has not fulfilled the parameters of review as set out in Order 45 of the Civil Procedure Rules. Further, that there was inordinate delay in filing the instant application and no suficient cause has been demonstrated. 18. In the circumstances, I find the instant Notice of Motion application unmerited and will proceed to dismiss it. DATED SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF NOVEMBER, 2025 CHRISTINE OCHIENG. JUDGE In the presence of: Mukatha for Maina for Applicant Wachera holding brief for Kangethe for Respondent Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7684/eng@2025-11-06 4

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