https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3180

Kiragu & another (Suing as Legal Representative of the Estate of the Late James Kiragu Kigotho (Deceased)) v Miringu (Environment and Land Case 152 of 2013) [2026] KEELC 3180 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3180 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case 152 of 2013 LC Komingoi, J May 21, 2026 Between Hellen Wanjiru Kiragu 1st Plaintiff Mary Njeri Kiragu 2nd Plaintiff Suing as Legal Representative of the Estate of the Late James Kiragu Kigotho (Deceased) and James Ndung’u Miringu Defendant Ruling 1.This ruling is in respect of Notice of Motion dated 23rd February 2026 brought under Sections Article 159 of the Constitution of Kenya 3, 3A and 80 of the Civil Procedure Act, order 22 Rules 25, Order 45 Rules 1(b), 2(b), and Order 51 rule 1 of the Civil Procedure Rules 2010 and Section 79 and 80 of the Land Registration Act of 2012 and all other enabling provisions of the law). 2.It seeks orders:-1.Spent2.Spent3.That this honorable Court be pleased to review and vary its ruling delivered on the 11th December 2025 on account of mistake or error apparent on the face of the record, or for any other sufficient reason and set aside the finding that the applicant do deliver vacant possession of the parcel of land known as Miti Mingi/Mbaruk Block 5/36 and/or and the subdivision thereof within 30 days from the date of the order, failure to which the Respondent be at liberty to involve the court bailiff, or auctioneers to be assisted by the relevant police department in execution of eviction.4.That the costs of this application be provided for. 3.The grounds are on the face of the Application and are set out in paragraphs 1 to 13. 4.The Application is supported by the affidavit of Mary Njeri Kiragu, one of the Plaintiffs herein, sworn on the 23rd February 2026. 5.The application is opposed. There is a Replying Affidavit sworn by James Ndungu Miringu the Defendants Respondent sworn on the 10th March 2026. 6.The Notice of Motion was canvassed by way of written submissions. The Plaintiffs/applicants Submissions 7.They are dated 10th April 2026. They raise two issues for determination: -i.Whether the application for review is merited?ii.Who should bear the costs of this application? 8.It is submitted that the section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules set 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.Reliance is placed on the cases of Ongaga Vs Orieri & 2 Others (2025) KECA 1162 (KLR); Muyodi Vs Industrial and Commercial Development Corporation & Another (2006) I EA 243, Republic Vs Council of Legal Eduction & 2 Others Ex Parte Mitchelle Njeri Thiongo Nduati (2019) KEHC 11737 (KLR). 9.Counsel further submitted that there is an error on the face of the record in allowing the Respondent’s application as there is no parcel of land in existence known as Miti Mingi/Mbaruk Block 5/36 and the court never issued a decree in relation to the said parcel of land because the parcel of land ceased to exist before the filing of this suit. 10.That it was incumbent upon the Respondent to name the specific parcel of land that arose from the sub division which he wanted plaintiffs/Applicants to be evicted from. 11.It is also slubmitted that parcel known as Miti Mingi/Mbaruk/Block5/36 does not exist and it sub divisions were never part of the proceedings herein except all that parcel of land known as Miti Mingi/Mbaruk Block 5/4253. They pray that the riling be reviewed on account of mistake or error apparent on the face of the record 12.It is submitted that, costs ought to be awarded to the Plaintiff’s/Applicants. Reliance is placed on section 27 (1) of the Civil procedure Act and the case of Joseph Oduor Anode Vs Kenya Red Cross Society (2012) KEHC 3607 (KLR) The Defendant’s/respondent’s Submissions. 13.They are dated 27th April 2026. Counsel submitted that the jurisdiction of the court under Order 45 rules (1) of the Civil Procedure Rules, does not permit a party to relitigate its case where it is not satisfied with the outcome. It is meant to correct errors which are evident on the face of the record and which do not call for elaborate explanation. Reliance is placed on the case of Ali Vs Dika & 2 others (2025) KEELC 5003 (KLR). 14.It is also submitted that an error in interpretation of the law and failure to consider a party’s submission do not qualify as errors apparent on the face of the record. Reliance is placed on the case of Parcras T. Swai Vs Kenya Breweries Limited (2014) KECA 883 (KLR); John Peter Mudhune Vs National Bank of Kenya Limited (2019) eKLR. 15.It is also submitted that sufficient reason as a ground for review is a residual ground which is invoked where a party has neither demonstrated discovery of new and material evidence or an error on the face of the record. He has put forward the case of Republic Vs Nairobi City Council Assembly & Another, Musumba & 4 Others (Exparte Applicants) (2025) KEHC 5656 KLR. 16.It is submitted that the instant application is an attempt to relitigate an application which has been heard on merits. That it is a back-door appeal disguised as an application for review. 17.It is also submitted that the delay in filing this application has not been explained. He prays that the Application be dismissed with costs. Analysis And Determination 18.I have considered the Notice of Motion, the affidavit in support, the response thereto, the written submission, and the authorities cited. The issue for determination is whether the Application meets the threshold for grant of review orders under Order 45 Rule 1 of the Civil Procedure Rules. 19.Order 45 rule 1 of the Civil Procedure rules provides as follows:-i.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.It is the Plaintiffs/Applicants’ case that the ruling of 11th December 2025 referred to a parcel known as Miti Mingi/Block5/36, which had ceased to exist. 20.In his ruling dated 11th December 2021 Hon Ombwayo J, granted the following orders: -“It is not in dispute that Miti Mingi/Mbaruk 5/36 was the original suit property prior to subdivision. It is also not in dispute that the Applicant has sought for eviction orders from Miti Mingi/Mbaruk 5/36 and/or all the subdivisions. It is therefore this court's view that the Respondents argument does not hold water since the Applicant has expressly sought for eviction orders from the sub divisions of Block 5/36 which includes Miti Mingi/Mbaruk Block 5/4253. Consequently, it is this court's view that the application is merited and I allow the same as prayed.The Respondent is hereby directed to vacate the suit parcel within 30 days failure which the Applicant is at liberty to involve the court bailiff or auctioneers to be assisted by the relevant police department in execution of the eviction. The Respondents shall bear the costs of this application”. 21.I have gone through the court record and I find that at the time of filing this suit and delivery of judgment dated 8th February 2017, the Plaintiffs/Applicants still occupied the parcel known as Miti Mingi /Mbaruk Block 5/4253 which was a sub division of Miti Mingi /Mbaruk Block 5/36. 22.By the time of the ruling of 11th December 2025, it is the Defendant’s case that the Plaintiffs’/Applicants’ had relocated to a different portion of that land which he had sold to one Julia Njambi Kinyanjui. 23.It is not in contention that Miti Mingi/Mbaruk Block 5/36 was the original suit property prior to subdivision. The Defendant’s prayer was for eviction orders in respect of Miti Mingi/Mbaruk Block 5/36 and all the subdivisions. 24.I find that the Honourable Ombwayo Judge, rightly held that the Defendants had sought eviction orders from the subdivision of Miti Mingi/Mbaruk Block 5/36 which included Miti mingi Mbaruk Block 5/4253. 25.I agree with the Defendant/Respondent’s submissions that the application herein has not met the threshold for grant of the orders sought.In the case of Muyodi Vs Industrial Commercial Development Corporation & Another (2006) I EA 243, the court of appeal described an error apparent on the face of the record as follows:“In Nyamogo and Nyamogo v Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground or a review although it may before an appeal. This laid down principle of law is indeed applicable in the matter before us.” 26.I am guided by the above authority in find that the Plaintiffs/Applicants have failed to demonstrate that there is an error apparent on the face of the record in the said ruling. 27.I agree with the Defendants/Respondent’s submission that this is an attempt in relitigate an application which was heard on its merits. 28.It is my view that there is no mistake or error apparent on the face of the record by referring to parcel known as Miti Mingi /Mbaruk Block 5/36 because this was the original suit property before subdivision. 29.It is still the same land, and if the Plaintiffs/Applicants are still on it, then they ought to vacate. 30.It should be noted that the judgement of 8th February 2017 has not been set aside and appealed against. 31.In conclusion I find no merit on this application and the same is dismissed with costs to the Defendant/Respondent. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 21ST DAY OF MAY 2026L KOMINGOIJUDGEIn presence of : -Mr. Onyango for Mr Konosi for the Plaintiffs/ApplicantsNo appearance for the Defendant/RespondentCourt assistant: Derick/ Irene