https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3327

Isaboke & another v Okara & another (Land Case Appeal E009 of 2025) [2026] KEELC 3327 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELC 3327 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Land Case Appeal E009 of 2025 DO Ohungo, J June 3, 2026 Between Joseph Ombaire Isaboke 1st Appellant Grace Moraa Anyieni 2nd Appellant and James Okara 1st Respondent Kemunto Manwa 2nd Respondent (Being an appeal from the ruling and order of the Chief Magistrate’s Court at Nyamira (B Ondego, Chief Magistrate) delivered on 8th July 2025 in Nyamira MCELC No. 51 of 2018) Judgment 1.The background of this appeal is that the Appellants commenced proceedings in the High Court at Kisii when they filed Plaint dated 8th April 2011. The suit was brought against a total of six Defendants, including the Respondents herein as Fourth and Sixth Defendants, respectively. The matter was transferred to the Environment and Land Court at Kisii and then to the Chief Magistrates Court at Nyamira. 2.The Appellants averred in the Plaint that land parcel number Central Kitutu/Bogetaorio/1072 (suit property) was part of the estate of Kerundu Nyakiage (deceased) and that the Defendants were in wrongful “possession” of the suit property. That despite several demands “to desist from possession” and interference with the suit property, the Defendants failed and refused to comply. Consequently, the Appellants prayed for judgment against the Defendants jointly and severally for:a.A declaration that Plot No. Central Kitutu/Bogetaorio/1072 is part of the estate of the deceased Kerundu Nyakiage.b.An order of eviction of the defendants, their agents and/or servants and/or any persons holding the same on their behalf from land parcel No. Central Kitutu/Bogetaorio/1072.c.A permanent injunction restraining the defendants their agents and/or servants from entering onto, cultivating, and/or erecting any structures and/or in any way interfere (sic) with land parcel No. Central Kitutu/Bogetaorio/1072.d.Costs of this suit.e.Any other order this court deems fit to grant. 3.In the course of the proceedings before the Subordinate Court, the First Respondent filed Notice of Motion dated 31st January 2023 seeking striking out the Plaint dated 8th April 2011. Upon hearing the application, the Subordinate Court (W K Chepseba, Chief Magistrate) delivered ruling on 24th September 2024, finding that the Appellants lacked locus standi to file the case. The Court allowed the application with costs to the Defendants. 4.The Appellants thereafter filed Notice of Motion dated 2nd December 2024 seeking review and setting aside of the order of 24th September 2024 on the ground that there was an error on record and that the Subordinate Court had inadvertently failed to consider their submissions which were on record. They further prayed that upon setting aside being granted, the matter be heard on its merits. 5.Upon hearing Notice of Motion dated 2nd December 2024, the Subordinate Court (B Ondego, Chief Magistrate) delivered ruling on 8th July 2025 and dismissed the application with costs. 6.Dissatisfied with the outcome, the Appellants filed this appeal through Memorandum of Appeal dated 29th July 2025 and prayed that the appeal be allowed with costs, that the ruling of the Subordinate Court be set aside and that their application for review be allowed. 7.The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: 1.The learned trial magistrate erred in law in holding that failure by the Court to consider the written submissions by the Appellants Counsel in the sub-ordinate court was not sufficient reasons for reviewing the Order in question considering that the subject matter at hand was an application. 2.The learned trial magistrate misdirected himself by holding that the Applicants (sic) was not merited and there was allegedly no defence on merit whereas the Appellants were not defendants but Plaintiffs in the subordinate court. 3.The learned trial magistrate also misdirected himself in holding that that was in-ordinate delay in mounting the Application for review. 4.The learned trial magistrate failed to consider the entire suit that was before him in that it was a land claim that the Appellants herein ought to and should at least be accorded an opportunity to ventilate their case. 8.The appeal was canvassed through written submissions. The Appellants filed submissions dated 11th March 2026, the First Respondent filed submissions dated 7th March 2026 while the Second Respondent filed an undated document titled “2nd Respondent’s Complaint” on 17th April 2026. 9.It was submitted that on behalf of the Appellants that the application was to be canvassed by way of written submissions and that the Learned Magistrate erred in failing to consider the Appellants’ written submissions. That the error occasioned the Appellants a miscarriage of justice. 10.It was also submitted that dismissing the Appellants’ application on the basis that there was no defence on merit was clearly a serious misdirection. That in any case, what was before the Court was an application for review as opposed to one seeking to set aside judgment for failure to file defence which would have required the Court to consider whether there was a plausible defence. 11.It was equally submitted that there was no inordinate delay considering that the First Appellant had deposed in the affidavit in support of the application that he made inquiries from his counsel sometimes in November 2024 and upon learning of the outcome, he quickly instructed their counsel to file the application. 12.The First Respondent submitted that failure to consider the Appellants submissions by the subordinate court below would not cure their situation and that submissions have a limited purpose of narrowing issues for the Court to reach a determination. That submissions are not evidence and could not substitute evidence, and that at the end of the day the Court below would still have relied on pleadings and facts presented. 13.The First Respondent also submitted that without a grant of letters of administration, the Appellants had no capacity to deal with the estate of the deceased hence they had no locus standi. That a lot of time had been expended on the issue, yet the parties ought to have subjected the estate of the deceased to a succession cause. 14.On her part, the Second Respondent dwelt largely on merit of the suit before the Subordinate Court. She submitted that this Court should “remove [her] name from this matter because [she does not] have any interest [in the suit] property.” 15.This is a first appeal. The mandate of a first appellate Court is as was succinctly stated by the Court of Appeal in Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR:This being a first appeal, we are reminded of our primary role as a first appellate court, namely to re-evaluate, re- assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. 16.Further, I bear in mind that an appellate Court should not interfere with the exercise of discretion by an inferior Court unless it is satisfied that the decision of the inferior Court is clearly wrong due to misdirection or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration with the result that it arrived at a wrong conclusion. See Mombasa Cement Limited v Kitsao & 34 others (Civil Appeal E016 of 2020) [2022] KECA 562 (KLR) (24 June 2022) (Judgment). 17.I have carefully considered the grounds of appeal and the parties’ respective submissions. The issues that arise for determination are whether there was an error on record, whether there was inordinate delay and whether review ought to have been granted. 18.The Appellants sought review of the order of 24th September 2024 on the ground that there was an error on record. Section 80 of the Civil Procedure Act provides as follows: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; 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. 19.Further provisions concerning review are found at Order 45 Rule 1 of the Civil Procure Rules as follows: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 sufficient 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. 20.In Mutisya (Suing as the personal representative of the Estate of Simon Wambua Makau (Dcd)) v Macharia t/a Three Bins Services & another [2023] KECA 234 (KLR), the Court of Appeal summed up the law relating to review thus:Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules are instructive on the principles applicable in a review application. A reading of the above provisions clearly shows that while Section 80 (f) of the Civil Procedure Act grants the court power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason. 21.The Appellants’ reason for seeking review was that there was an error on record. They contended that the error was that Hon. W K Chepseba stated that they did not file submissions. 22.In the impugned ruling of 8th July 2025, Hon B Ondego held as follows:Having gone through the submissions by the two sides I agree with the respondent that the application has been brought after undue delay and secondly that the Court became functus officio when it pronounced its Ruling since there is no new evidence or fact that may make the Court to review its earlier decisions.The Court also note that there was no mistake, or error on the face of record or any other sufficient reason to warrant a review. ...Likewise the Court finds that there is no defence on merit and that the applicant shall not suffer prejudice. 23.From the material on record, the Appellants demonstrated that they had filed written submissions. I have seen the said submissions, which raised inter alia, the argument that Notice of Motion dated 31st January 2023 was res judicata in view of a ruling delivered by the Subordinate Court on a similar application on 13th April 2021. 24.In the ruling of 24th September 2024, Hon. W K Chepseba, stated that the Appellants neither filed a response nor submissions. That was clearly an error which was apparent on the face of the record. The issue of res judicata raised in the submissions was a grave one since it went to the jurisdiction of the Court. 25.Under Order 45 Rule 1 of the Civil Procure Rules, it is a requirement that an application for review be made without unreasonable delay. The ruling by Hon W K Chepseba was delivered on 24th September 2024 while Notice of Motion dated 2nd December 2024 was filed on 4th December 2024, some two months and ten days later. The First Appellant deposed in the affidavit in support of their application that the ruling was scheduled for delivery on 10th September 2024 but was not delivered on that date since the Court was not sitting. 26.I have perused the record and I note that on 10th September 2024, without any appearance by the parties, the ruling was rescheduled for delivery on 24th September 2024. No reason was given for the change of date. Ultimately, it was delivered on 24th September 2024, in the absence of parties. In view of the circumstances, the delay of two months and ten days was not inordinate. The learned Magistrate erred in holding that there was inordinate delay. 27.As I noted earlier, the Appellants contended in their submissions in respect of Notice of Motion dated 31st January 2023 that the application was res judicata in view of a ruling delivered by the Subordinate Court on a similar application on 13th April 2021. 28.Res judicata is a doctrine that is embodied in Section 7 of the Civil Procedure Act. Its effect is that it deprives a Court of jurisdiction to hear and determine any matter that falls within the four walls of the doctrine. For an objection based on res judicata to succeed, there must been a previous suit in which the matter was in issue; the parties in both matters were the same or litigating under the same title; the previous matter was heard and determined by a competent Court and the issue is raised once again. The doctrine is a complete estoppel against any suit or proceedings that run afoul of it. See John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR and Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] eKLR. 29.The ruling of 13th April 2021, which was on the Second and Fourth Defendants’ Notice of Motion dated 28th November 2018, dealt with the question of whether the Plaint could be struck out for want of locus standi on the part of the Appellants. The Second and Fourth Defendants had contended in the application that the letters of administration Ad Litem pursuant to which the Appellants had filed the suit had been revoked pursuant to order made on 20th June 2018 in Kisii HC Succession Cause No. 712 of 2009 and that consequently, the Appellants lacked locus standi. 30.Upon considering the issue, the Subordinate Court concluded that the Appellants had locus standi and declined to allow the application. In essence, the application was dismissed with costs in the cause. The First Respondent sought to relitigate the very issue of whether the Appellants had locus standi in view of the order made on 20th June 2018 in Kisii HC Succession Cause No. 712 of 2009. That issue having been determined through the ruling of 13th April 2021, it was res judicata. Whether the findings in the ruling of 13th April 2021 were right or wrong is not for determination now. Those findings could only be validly determined through an appeal against the orders of 13th April 2021. I am satisfied that the Appellants made a case for review. 31.Arising from the foregoing, it is manifest that the decision of the Subordinate Court is clearly wrong due to misdirection and failure to properly apply both the test for review and res judicata. I find merit in this appeal. 32.In the result, I make the following orders:a.The ruling and order of the Subordinate Court dated 8th July 2025 is set aside.b.The ruling and order of the Subordinate Court dated 24th September 2024 is reviewed.c.Notice of Motion dated 31st January 2023 is struck out.d.The Appellants shall have costs of this appeal as well as costs of Notice of Motion dated 31st January 2023, and Notice of Motion dated 2nd December 2024. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 3RD DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:The 1st Appellant present in personNo appearance by 2nd AppellantThe 1st Respondent present in personNo appearance by the 2nd RespondentCourt Assistant: B Kerubo