https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4577

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT KILGORIS** **ELC (LA) E033 OF 2024** **VIVIAN KORIR BOR………………………………….………..1ST PLAINTIFF/APPLICANT** **JOSEPH CHERUIYOT BOR…………………………….……..2ND PLAINTIFF/APPLICANT JONATHAN BOR…………………...…………………..…….3RD PLAINTIFF/APPLICANT SAMUEL KIPNGETICH BOR…………………………………4TH PLAINTIFF/APPLICANT PAUL KIPNGETICH BOR……………………...……………..5TH PLAINTIFF/APPLICANT PATRICK KIPNGENO BOR………………………………..…..6TH PLAINTIFF/APPLICANT JOEL KIPRUTO BOR………………………………………….7TH PLAINTIFF/APPLICANT CATHERINE BOR………………………………………...…….8TH PLAINTIFF/APPLICANT AGNES CHEPKOSKEI BOR……………………………...….9TH PLAINTIFF/APPLICANT VERSUS** **RICHARD KIPKOECH SANG………………………..………DEFENDANT/RESPONDENT** **RULING** 1. The Application by way of the Notice of Motion dated 19th February 2026, subject of this Ruling seeks the substantive reliefs as follows; - 2. Spent. 3. That the Honourable court be pleased to review, set aside and/or vacate the judgment delivered on 19th November 2025, on account of discovery of new and material facts which impact on the judgment. 4. Upon review this Honourable court be pleased to declare that this suit property known as L.R No. Transmara/Angata Barigoi/540 no longer exists in law, following the cancellation of the adjudication titles and registration process by the Court of Appeal in Nakuru. 5. This court be pleased to vacate and discharge all consequences and enforcement orders arising from the said judgment. 6. Costs of the application be in the cause. 7. The application is based on grounds *interalia*; 8. That the Court of Appeal in Nakuru in Civil Appeal Nos. E22 and 25 of 2020 (consolidated) issued orders cancelling titles under Angata Barigo Adjudication register and transferred several parcels of land to Moyoi Ajudication register and re-adjudication of the same which judgment was made subsequent to the judgment of this court sought to be reviewed. 9. That L.R No. Transmara/Angata Barigoi/540 was part of the parcels that were found to be overlapping which give rise to prolonged disputes between Angata adjudication section and Moyoi adjudication section. 10. Pursuant to the said Court of Appeal orders the entire adjudication process and registration upon which the Respondents claim is founded was cancelled rendering the property non-existent in law, and the order is thus new and material evidence within meaning of Order 45 Rule 1 which was not available and could not be procured with due diligence at the time the judgment was delivered. 11. The Respondent does not hold a valid title capable of enforcement and any continued reliance on the impugned judgment would occasion grave injustice. 12. The application is supported by the affidavit of Jonathan Kiplangat Bor who reiterates the grounds in support of the application and has annexed a copy of the decree before the lower court, a copy of the judgment herein and a copy of the orders issued by the Court of Appeal in Civil Appeals No. E22 and E25 and deposes further that the suit parcel no longer exists pursuant to the orders of the Court of Appeal and that the judgment of this court cannot be enforced. 13. The application was opposed by the Replying affidavit of the Respondent Richard Kipkoech Sant who deposes as hereunder interalia that; 14. Jonathan Kiplangat Bor having donated power to Paul Kipngetich Arap Bor could not swear affidavit in this matter. 15. That the proceedings resulting to the orders of the Court of Appeal do not affect the Respondent as the consent annexture JKB 3 does not include the suit property. 16. That the Respondents parcel has not been affected by cancellation through the order of the Court of Appeal as the Respondent obtained a search on 2nd day of March 2026 on the suit property. 17. That court directed the application to proceed by way of written submissions. 18. That Applicants did not file their submissions despite their counsel seeking extension of time to do so on 27.04.2026, when he sought leave to file a further affidavit, and the submissions. 19. The further affidavit was equally not filed. 20. The Respondent filed his submissions and framed 3 issues for determination. 21. On issue one the Respondent submits that the Applicant was not authorised to swear the affidavit on behalf of the other applicants as no written authority under order 1 Rule 13(2) of the Civil Procedure Rules expressly authorising Jonathan Kiplangat Bor was exhibited but the authority exhibited authorised a different person namely Paul Kipngetich Bor. 22. On issue number 2, as to whether the application met the threshold for grant of review orders under Order 45 Rule 1, the Respondent submitted that the consent judgment the basis of the application is dated 14th October 2024, while the judgment sought to be reviewed was delivered on 19th November 2025 one year later, hence the same existed before ethe judgment and the same cannot be new evidence; obtained after due diligence. 23. On the last issue, as to whether the Nakuru Court of Appeal consent renders the suit property, Transmara/Angata Barigoi/540 non-existent, the Respondent submits that the said consent order did not mention the suit parcel, and declare it cancelled hence it does not affect the suit property. 24. The Respondent further relied on the search dated 2nd March 2026 which confirmed the existence of Transmara/Angata Barigoi/540 in name of Respondent. 25. The Respondent submits that the Cour to Appeal decision related to Transmara/Moyoi/2 in a different adjudication section while the decision of this court relates to Transmara/Angata Barigoi/540 in a different section, and as he was not a party thereto, he could not be bound by the said consent. 26. On the strength of the above submissions, the Respondent sought for dismissal of the application. **Issues for Determination** 1. Having analysed the application, the rival affidavits as well as the submissions and considered the law; the court frames the sole issue for determination as to 2. Whether or not the application is merited. 3. Who bears the costs of this application? **Analysis and Determination** 1. I have looked at the consent order recorded at the Court of Appeal, in Civil Appeal No. E022/2020 as consolidated with Civil Appeal No. E023/2020 and I agree with the Respondent that the said order does not mention the suit parcel herein but mentions Transmara/Moyoi/2. The Respondent has annexed a copy of search dated 2nd of March 2026 which shows that the suit property to wit Transmara/Angata Barigoi/540 is still in existence at the time the application was filed. The contention therefore that the consent order filed before the Court of Appeal extinguished the said title is thereof a red herring. 2. The application for review was based on the grounds of discovery of new and important evidence. The consent order is dated 14th October 2024 while the judgment sought to be reviewed is dated 19th November 2025. It follows that the ‘new’ evidence existed before the judgment and in fact was in the knowledge of Jonathan Kiplangat Bor, since he was a party before the Court of Appeal case, and this case too and it is therefore not new as he had knowledge of the same. 3. The Court of Appeal in its decision in the case of **Unigroup Transporters Ltd Vs. Mwasawe (Civil Appel No. E008 of 2021) 2024 (KEA 567)** observed, *interalia* in relation to application for review on the ground of discovery of new evidence, as follows; ***“Application on this ground must be treated with great caution. Review cannot be sought to supplement the evidence or introduce new evidence. The Applicant must show that he could not have produced the evidence in spite of due diligence, that he had no knowledge of the existed of the evidence or that he had been deprived of the evidence at the time of the trial. It is so easy to the party who lost his case to see what the weak part of his case was and the temptation to lay and procure evidence which will strengthen that part and put a different complexion upon that part of the case must be strong. The Rule that permits a new trial to be granted on account of discovery of new evidence, has therefore been fenced round with many limitations and the party asking for new trial must show that there was no remissness on his part in adducing all possible evidence at the trial….Review cannot be used to supplement evidence or to produce new evidence...”*** 1. On the issue of a possible conflict between the impugned judgment and the consent order that was filed before the Court of Appeal, the court notes that upon its adaption, the consent order filed at the Court of Appeal became a judgment of that court which is binding on this court, and the said a judgment is thus a judgment in Rem under section 44 of the Evidence Act, which determined conclusively all issues therein, including the issue of proprietary rights between parties and/or extinguishing of titles, and being a Judgment in Rem, and a binding judgment on this court there was no need and necessity of any party to seek for a review before this court, of the judgment delivered herein and hence no possibility of a conflict at all. 2. The court therefore finds that the application is not merited and the same is dismissed with costs to the Respondents. Dated at Kilgoris this 20th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Gilbert Mr. Bosek for the Applicant Ms. Gogi for the Respondent