https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5175

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC APPEAL NO. E007 OF 2026** **ALBERT KINYANJI ALUGAYA----------APPELLANT/RESPONDENT** **VERSUS** **JAMES LUSWETI-------------------------1ST RESPONDENT/APPLICANT** **PETER LUSWETI--------------------------2ND DEFENDANT/APPLICANT** **RULING** 1. The applicant, Peter Lusweti, moved this court by way of a Notice of Motion Application dated **16/7/2026,** seeking the following orders: 2. **…spent** 3. **…spent** 4. **THAT this Honourable Court reviews and/or sets aside the ruling dated 29/6/2026 and all other consequential orders thereto.** 5. **THAT costs of this application be in the cause.** 6. **THAT this Honourable Court be pleased to make any such further or other orders as it may deem just and expedient to meet the ends of justice.** 7. The application is based on the grounds on the face of it, mainly that the learned trial judge delivered a ruling on **29/6/2026,** which adjudged the applicant guilty of contempt of court despite the evidence on record as to the date of service enumerated in the replying affidavit. 8. The applicant further contends that he explained to the court through his then counsel on record the genesis of the alleged contempt, including his willingness to purge the contempt, which evidence the Honourable Court overlooked. 9. The application is supported by the sworn affidavit of the applicant herein setting out the facts giving rise to the same. 10. At **paragraph 2** of the said affidavit, the deponent avers that on **29/6/2026**, vide a ruling of even date, the learned trial judge adjudged him guilty of contempt of court for non-compliance with the orders of status quo on **9/6/2026**. That it was despite the fact that service of the said order had been done on **13/6/2026**, way after the act of the alleged contempt had taken place. 11. The applicant further deponed that he was unable to restore the perimeter fence to its original place given the fact that to do so would result in damage to the adjacent residential house, bearing in mind that judgment in respect of the ownership of the suit was done way back in **2019**. The applicant further averred that the OCS Kwanza Police Station explained this via an incident report made to court on challenges the applicant was facing in pulling down the fence. 12. The applicant went further to state that in the said affidavit, via a recording presented to this court alongside the certificate of the electronic evidence and the certificate of translation, the process server confirmed having effected service upon him on **13/6/2026**. 13. That despite the probative evidence above, the court went ahead and adjudged him guilty of contempt, condemning him to serve a disproportionate **6-month** sentence in default of **Kshs. 1,000,000/=** fine in blatant disregard of the evidence in his replying affidavit dated **28/4/2026**. 14. The applicant also averred that the court made this pronouncement oblivious of the fact that the lower court in **CMELC No. 100 of 2019** had declared him the lawful owner of the suit land and that he had not interfered with the suit property in any manner contrary to the terms of the judgment. 15. The applicant indicated further that he is ready to purge the contempt, including ceding the suit property to the respondent despite having a legitimate claim thereof. 16. In a brief replying affidavit sworn on **28/7/2026** by the respondent Albert Kinyanji Alugaya, this application is opposed. The respondent avers that the application is fatally defective, incompetent, bad in law, and urged the court to dismiss the same. 17. The respondent further stated that the orders that led to the applicant being found guilty of contempt of court were made on **9/4/2026** and served on **10/4/2026**. The respondent stated that it is not true that the applicant was served on **13/4/2026** and that he is the one who “doctored” the copy of the order that he retained to suit him. 18. The respondent equally stated that the applicant and his advocate had admitted to the fact of contempt of court and asked for time to purge it but failed to do so when given time. 19. The respondent also averred in his affidavit that on the contested service of the court order, the court had both the court process server and the applicant cross-examined, and the court found the process server to be truthful. 20. The application was argued orally in court. On her part, Ms. Nanjumbia for the applicant submitted that there is an error apparent on the face of the record that this court ought to correct by reviewing the decision of the learned trial judge that found the applicant in contempt of court and subsequently committed him to civil jail in default of paying a fine of **Kshs.1,000,000/=.** 21. The learned counsel further told the court that a cursory look at the ruling of the court shows that the applicant cross-examined the process server yet no such cross-examination was conducted. Counsel further contended that there is a transcription which shows that service was effected on **13/4/2026** and not 1**0/4/2026**, way after the acts they complained of were allegedly committed. The learned counsel further stated that the court overlooked the contents of **Section 78** of the Contempt of Court Act. 22. The learned counsel referred the court to the case of ***Justus Kariuki Mate & another vs Hon. Martin Nyaga Wambora Civil Appeal No. 24 of 2014*** and ***North Tetu Farmers’ Co-operative Ltd vs Joseph Nderitu Wanjohi [2016] eKLR***. 23. On her part, Ms. Munialo for the respondent sought to rely on the replying affidavit on record and further submitted that the application does not fit into the **3** main grounds upon which the court may be moved for review of its orders under **Section 80** of the Civil Procedure Act and **Order 45 Rule 2** of the Civil Procedure Rules, namely; discovery of new and important evidence, an error apparent on the face of the record, any other sufficient reasons/grounds. That none of the said grounds has been placed before this court in order for the court to exercise its discretion to review the ruling and decision of this court. Counsel went further to suggest that the applicant ought to have appealed the decision of the court at the Court of Appeal. 24. Learned counsel referred the court to the case of ***Eliud Njuguna Mwangi & Another vs John Kibiwott Kibowen ELC No. 299 of 2012*** and ***National Bank of Kenya Ltd vs Njau [1997] eKLR***. Counsel further told the court that the applicant had applied for review once again and the same was dismissed. 25. I have carefully considered the application, together with the rival affidavits on record. I have also considered the oral arguments by counsel on behalf of the parties herein as well as the applicable law. 26. The applicant’s notice of motion dated **16/7/2026** is brought under **Section 80** of the Civil Procedure Act and **Order 45(2)** of the Rules thereunder. The applicant has invited the court to consider those two provisions and to review or set aside the ruling of the court dated **29/6/2026.** 27. **Section 80** of the Civil Procedure Act provides as follows: ***“Any person who considers himself aggrieved-*** 1. ***by a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred; or*** 2. ***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.”*** 3. **Order 45 Rule 1(1)(b),** on the other hand, provides that any person considering himself aggrieved - ***“(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 sufficient reason, desires to obtain a review or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”*** 1. From the foregoing, it is clear that whereas **Section 80** of the Act gives the court powers of review, **Order 45** of the Rules gives the court the guiding principles while considering an application for review (See ***Republic vs Public Procurement Administrative Review Board & 2 Others [2018] eKLR***. 2. The applicant picked one ground for the review of the impugned court’s ruling, to wit: that there is an error apparent on the face of the record worthy of this court’s attention. 3. The applicant, for example, contends that a cursory look at the ruling of the court shows that the applicant cross-examined the process server, which actually no such cross-examination was conducted 4. I have taken the liberty to read through the **133-paragraphs** ruling of the learned trial judge. At **paragraph 116** of the said ruling, the court observed as follows: ***“The 2nd respondent, as indicated above, was duly served with the court order, signed, dated and appended his name on the court copy, returned herewith. This was done at his mini-petrol station on 10/4/2026 at 10.05 am. It happened in the presence of the appellant, whom, strangely, he did not insist on cross-examining, yet he says he is out to collude with the process server to unjustly accuse him of contempt****”* 1. At **paragraph 91** of the ruling, the court had this to say: ***“Even after the process server was put on the witness stand and insisted that he stood by the contents of the two affidavits, the 2nd respondent did not specifically put questions to test his veracity, credibility, and reliability to discount his affidavits on oath.”*** 1. At **paragraph 103** of the ruling, the court said: ***“The process server in his affidavit dated 14/4/2026 says that the 2nd respondent was served with the order on 10/4/2026 at his mini-patrol station, signed, dated, and appended his name on the face of the principal copy thereto returned to court. The 2nd respondent also received the court papers on behalf of the 1st respondent, who is her biological brother.”*** 1. The above record seems to address everything about the service of the contested court order and the issue of cross-examination. There is nothing to show that there is an error apparent on the face of the record for this court to invoke its jurisdiction under **Order 45 Rule 1** of the Civil Procedure Rules on the issue of cross-examination of the process server. 2. All the other grievances raised by the applicant’s supporting affidavit sworn on **16/7/2026** are matters that would form the substance of an appeal or mitigate the sentence. 3. I hold that this court lacks jurisdiction to review, re-evaluate, and re-assess the totality of the evidence in this case because to do so would amount to sitting on its own appeal. It matters not whether I would have arrived at a different finding upon hearing the contempt charges or that I would have meted out a different sentence. 4. As I conclude, I must admit that this matter has given me a lot of anxiety. Anxiety because I am fully aware that the 2nd respondent, who is a school teacher, stands at risk of losing his job with his continued imprisonment, yet I am a servant of the law. I cannot act arbitrarily outside the four corners of the law. 5. This court even took the liberty of urging parties to negotiate a settlement, purge the contempt and have the 2nd respondent secure his freedom. The court equally advised the 2nd respondent to appeal the decision of this court. But it is clear he did not heed the advice. 6. The upshot is that the application lacks merit and the same is dismissed. I, however, exercise my discretion not to award any costs owing to the circumstances of this case. 7. It is so ordered. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **31st** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Ms. Nanjumbia for the applicant Ms. Munialo for the respondents  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**