https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5041

Omaido v Mungau & another (Environment and Land Case E014 of 2026) [2026] KEELC 5041 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEELC 5041 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case E014 of 2026 GM Gitonga, J July 31, 2026 Between Elfinias Jackson Omaido Plaintiff and Benson Osundwa Mungau 1st Defendant Ezekiel Epale 2nd Defendant Ruling 1.What is before me for determination is the 1st defendant’s application dated 11/06/2026, in which the said defendant(applicant) is seeking that the Honourable Court be pleased to review, vary and/or set aside the orders granted pursuant to prayers 3, 5, and 6 of the plaintiff’s application dated 21/2/2026. The defendant further seeks for order4s that the status quo obtaining on the suit property be maintained pending the hearing and determination of the suit. 2.The application is based on the grounds that the orders as issued restrain the defendants from entering and remaining on the suit property, effectively evicting them before the suit is heard and determined. The applicant further contends that they, together with their families, have resided on the suit property openly, peacefully and continuously for over 50 years and have established their homes therein. 3.It is the applicant’s contention that the court overlooked the existence of permanent residential houses on the suit land. That prior to the impugned ruling, the defendants have already ploughed, cultivated and planted maize on the suit land. 4.The application is further supported by the affidavit of Benson Osundwa Mungau, the 1st defendant sworn on even date, which affidavit is also sworn on behalf and with the authority of the 2nd defendant/applicant. 5.In the said affidavit, the 1st defendant avers that his late father resided on the suit property during his lifetime and was buried thereon. That following his death, he, together with his family and that of his aunt, continued residing in the said land openly and continuously for over 50 years and established their homes thereon. 6.The defendant further avers that before the impugned ruling was delivered, they had ploughed, cultivated and planted maize and that the crop has since germinated and is presently growing on the suit land. The 1st defendant’s concern is that the orders have altered the status quo instead of preserving it pending the hearing and determination of this suit. They thus argue that the orders issued on 10/6/2026 be reviewed in the interests of justice. 7.The plaintiff/respondent filed a sworn affidavit which is undated, opposing the said application. In the said affidavit, the respondent avers that he is aware that the 2nd defendant has filed a Notice of Appeal dated 18/6/2026 against the entire impugned ruling, expressing his intention to appeal to the Court of Appeal. 8.The plaintiff/respondent further states the 1st defendant’s Notice of Motion seeks review, variation and/or setting aside of the very same orders that are the subject of the 2nd defendant’s intended appeal, namely that the court did not give sufficient weight to the defendants’ long occupation, developments on the suit land, family graves and the standing crops. 9.Directions were taken that the application be canvassed by way of written submissions and both counsel obliged. In his submissions, the 1st defendant through counsel on record seeks to clarify that he is not inviting the court to rehear the application for injunction; rather, the applicant has identified what he considers to be patent contradictions and omissions within the ruling and the order of court. Counsel for the 1st applicant contends that even though the ruling records the 1st defendant’s evidence of occupation, homes, graves and cultivation for over 50 years, the resulting orders restrain him from re-entering or remaining on the land. 10.On whether the applicant is competently before the court, counsel relied on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules for the proposition that a party who is not appealing from a decree or order may apply for 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. 11.On the issue of whether there are patent errors and reason for review, counsel submitted that a review corrects a self-evident error or omission without turning the court into an appellate court over its own decision. The learned counsel cited the case of National Bank of Kenya Ltd vs Ndungu Njau [1997] KEHC 16430 [KLR]. 12.The 1st defendant through counsel further pointed out what he considers to be the patent contradictions in paragraphs 15 to 20 and 27 of the ruling with regard to possession, positing that paragraphs 13, 14, 20, 23, and 34 acknowledged the applicants’ occupation and the issue of his homes. That the affidavit evidence showed homes, planted trees, a borehole, fencing and family graves, yet prayer 3 as reproduced in paragraph 7 and allowed in paragraph 35 restrains the defendants from entering upon, or remaining on the suit land. The 1st defendant urged the court to make an order of status quo as the most proportionate relief in the existence of the case. 13.On the other hand, counsel for the plaintiff/respondent filed submissions dated 14/7/2026, in which he raised 3 issues for determination, to wit: whether the court has jurisdiction to entertain the review application in light of the Notice of Appeal filed by the 2nd defendant, by reason of Order 45 Rule 12 of the Civil Procedure Rules; whether the review application discloses any ground for review under Order 45 Rule1(1) of the Civil Procedure Rules and whether the review application constitutes an abuse of the court process. 14.Counsel’s contention is that the grounds raised in the application for review are common to those raised by the 2nd defendant’s pending appeal, meaning that both limbs in Order 45 Rule 1(2) of the Civil Procedure Rules were triggered at the same time, rendering this application incompetent. Counsel relied on the Court of Appeal decision in the case of Amani National Congress Party & 2 Others vs Shimenga & Another (Election Petition Appeal No. E001 of 2022 [2022] KECA 740 [KLR], in which the court stated as follows:“There can be no place of review once an intention to appeal has been intimated by filing a notice of appeal. That is so as the notice of appeal is treated as appeal itself.” 15.Counsel further contended that there is no demonstrated recovery of new important evidence to warrant an applicant in Order 45 Rule 1(1) of the Civil Procedure Rules as the photographs depicting the family graves, the cultivation, the new crop were all placed on court record and the court made a finding after due consideration of such evidence. Counsel relied on the case of National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR, for this proposition. 16.Counsel for the plaintiff/respondent further argued that there is no error apparent on the face of the record that the applicant is seeking to cure in this application. Further stated that the ruling of the court is neither a clerical mistake nor a self-evident legal absurdity that requires correction. Counsel cited the case of Nyamogo & Nyamogo Advocates vs Kogo [2001] EA 173. 17.Counsel thus urged the court to find that the review application constitutes an abuse of the court process and to dismiss it with costs. 18.I have carefully considered the application, the rival affidavits on record as well as the applicable law. I have also considered the submissions by both counsel for which I am grateful. Two the said affidavits and submissions, I choose to raise one singular issue which I consider material for effective disposal of this application, to wit: whether the review application dated 11/6/2026 is a competent application before this court in light of the notice of appeal by the 2nd defendant dated 18/6/2026. 19.The 1st defendant’s application is brought under Sections 1A, 1B, 34, and 80 of the Civil Procedure Act and Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules. In order to appreciate the legal import of the above statutory provisions, a reproduction of their text herebelow will do:“S. 80. Any person who considers himself aggrieved –a.by a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred (emphasis mine) 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.” 20.On the other hand, Order 45 Rule 1 of the Civil Procedure Rules provides, thus:“(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, orb.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.(2)A party which is not appealing from a decree or order may apply for 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 the respondent, he can present to the appellate court the case on which he applies for review.” 21.I have reproduced the above provisions in extenso because they determine, in essence, the parameters within which an application such as the one before me can be made. 22.The 1st defendant/applicant contention is that the applicant is not inviting the court to rehear the application but rather to have a look at the patent contradictions and omissions within the ruling and correct the same. It is what the 1st defendant/applicant deems to be an error apparent on the face of the record. Similarly, the 1st defendant maintains that this application was filed on 11/6/2026, just a day after the impugned ruling was delivered, and the 2nd defendant’s notice of appeal was filed later on 18/6/2026. That the 1st defendant neither filed nor authorised the notice of appeal. That he is separately represented and chose review before the appellate step taken by his co-defendant. 23.On the other hand, the plaintiff in this matter contends that there is no discovery of new evidence that would warrant a review application; neither is there error apparent on the face of the record. The plaintiff further contends through counsel, the application before this court is incompetent in light of the notice of appeal filed. 24.I have addressed my mind to the rival views expressed by both counsel in this matter, and the judicial authorities cited. I have also taken the liberty to peruse the impugned ruling by my brother Justice C.K. Nzili. A reading of the said ruling at paragraphs 29, 30,31, 32, 33, and 34, and the ultimate orders made in paragraph 35, leaves no doubt in my mind that the court was very deliberate on the orders it made based on how it appreciated the facts of the case. The fact that one does not agree with the said holding does not ipso facto render such a finding an error apparent on the face of the record. It is not, in my view, an error that can be corrected by invoking Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Rather, it is a fit case for appeal so that a court higher in rank can weigh the decision reached by the learned judge against the facts of the case and make a determination as to whether the court arrived at a reasonable finding. I am guided by the case of National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR, in so holding. 25.The final issue that I am minded to address as a limb of the main issue therein is whether the filing of the notice of appeal by the 2nd defendant takes away this court’s jurisdiction to hear and determine an application for review. The notice of appeal was filed later on 18/6/2026, after the application before this court was filed on 11/6/2026. The 2nd defendant has expressed a desire to appeal the ‘whole’ of the ruling of the learned judge. Such a blanket prosecution of the appeal would address all the issues, including those raised in the application for review by the 1st defendant. I do not therefore think that it is an honest view to say that one can sever the review from the appeal. The prosecution of those two would offend the provisions of Order 45 Rule 2 of the Civil Procedure Rules which precludes the filing of both appeal and review where the grounds for such appeal are common to the applicant and the appellant. 26.Even though the 1st applicant has referred the court to the case of GGNN vs FWK [2026] KEHC 5654 [KLR] for the proposition that a mere filing of a notice of appeal does not necessarily amount to ‘preferring’ an appeal in a manner that ousts the court’s jurisdiction for review, I am of the considered view that the hierarchical order of our courts calls for the ceding of jurisdiction by this court the moment the Court of Appeal is seized of an appeal or process has been triggered by the filing of a notice of appeal. 27.It must dawn on the two defendants that they are joined at the hips by the matter before this court. They should have had a coordinated approach before the court by either withdrawing the notice of appeal and prosecuting the review application and vice versa. 28.However, given the conditions set out in Section 80 of the Act, Order 45 Rule 1(2) of the Civil Procedure Act, the surest way would have been to file an application for a stay of execution of the impugned court ruling pending appeal. 29.I feel I have said enough to explain why I do not think that this application is competent. I thus dismiss it with an order that costs thereof shall abide the outcome of the main suit. 30.Orders accordingly. 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/NancyMs. Cherono for respondent/plaintiffMs. Keya for the 1st defendant/applicantMs. Mukanda for Mr. Nakitare for the 2nd defendantHON. G.M. GITONGAJUDGE, ELC KITALE.