https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3454

 ***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC CASE NO. E001 OF 2021 (0.S)*** ***JOSEPH KARIA LEMEIN …………………… PLAINTIFF/APPLICANT*** ***VERSUS*** ***JOHN RIANOI NABAALA ……………… DEFENDANT/RESPONDENT*** ***AND*** ***NGUNJIRI MUTIRI & 10 OTHERS ………… INTERESTED PARTIES*** ***RULING*** 1. The matter coming up for determination is the ***Notice of Motion*** ***Application*** dated **13th February 2026,** brought pursuant to ***Sections 1A, 1B, 3A*** and ***63*** of the Civil Procedure Act, ***Order 40,* *Order 45 Rule 1*** of the ***Civil Procedure Rules 2010***, ***Articles 40, 50 and 159*** of the Constitution of Kenya 2010, wherein the Plaintiff/Applicant has sought from this Court the following Orders; 2. ***That pending the hearing and determination of this Application, the Defendants/Respondents be restrained by way of temporary injunction from closing, obstructing, fencing, interfering with or in any manner blocking the access road that passes through and/or borders his parcel of land known as CIS-MARA ENABELBEL/ENENGETIA NO 721 being the subject of this suit*** 3. ***That this Honourable Court be pleased to review, vary and/or set aside its judgment delivered on 30th January 2026.*** 4. ***That upon review, this Honourable Court be pleased to reconsider the material evidence on record and make appropriate orders in the interests of justice.*** 5. ***That the costs of this Application be in the cause.*** 6. The Application is supported by the grounds set out on the face of the Application, and on the Supporting Affidavit of **JOSEPH LEMIEN KAARIA**, the Plaintiff/Applicant sworn on even date. The grounds in support of the Application are; that this Court delivered a judgment dated ***30th January 2026,*** dismissing the Plaintiff/Applicant’s suit by holding that he did not produce evidence to prove the existence of the ***access road*** that is the subject of this suit. 1. That the court at **Para 53** of its judgment, the court held that an official search ought to have been produce to confirm existence of the road, yet a Certificate of Official Search dated ***13th February 2019,*** confirming the existence of the said road was produced as an exhibit by the Plaintiff/Applicant and was even referred to by the Defendant/Respondent during cross-examination; and that at **Para 72** of the judgment, the court stated that no exhibits from the ***District Surveyor or Land Registrar*** were produced to show existence of the access road, yet a ***Field Survey Report*** dated **16th November 2020,** authored by the ***District Surveyor*** confirming existence of the road was duly produced. 2. Further that the omission to consider the aforesaid material evidence ***constitutes an error apparent on the face of the record*** within the meaning of ***Order 45*** of the Civil Procedure Rules; that the Court had previously, vide its ruling dated **22nd March 2022**, ordered that the road be reopened and remain open pending determination of the suit. 3. That the Defendant/Respondent was subsequently found in contempt on ***4th October 2023*,** for disobeying that order;; that following the dismissal of the suit, the Plaintiff/Applicant is reasonably apprehensive that due to the automatic discharge of the Interim injunction, the Defendant/Respondent is likely to close the access road, thereby completely denying the Plaintiff/Applicant access to his residence; that it is in the interests of justice and fairness that the judgment be reviewed to prevent miscarriage of justice. 4. In his Supporting Affidavit sworn on ***13th February 2026****,* the Plaintiff/Applicant reiterated the grounds in support of the Application, and averred that he would suffer irreparable harm if the road is closed before the instant Application is heard and that the Application has been brought without unreasonable delay. 5. In response to the Application, the Defendant/Respondent filed a Replying Affidavit sworn on by him on ***9th March 2026,*** in opposition to this Application wherein he averred; that the instant Application is fatally defective and an abuse of court process and the same should be dismissed in the first instance. 6. He averred that though the Plaintiff/Applicant produced a Search Certificate dated ***13th February 2019,*** alleging the existence of a road passing through land parcel No*.* ***CIS-MARA/ENABELBEL/ENENGETIA/721,*** the Defendant/Respondent also produced a search Certificate over the same parcel of land dated 22nd December 2020, which did not show any road passing through his parcel of land. 7. He further averred that the alleged ***Field Survey Report*** dated ***16th November 2020,*** and produced by the Plaintiff/Applicant indicated that the alleged road has been in existence since the time of demarcation and referred to plans that were never produced before court, nor was an explanation given as to why the road that is said to have been in existence from the time of demarcation is not captured in the mutation forms, and the ***Registry Index Map***; that he did produce a survey field report dated ***2nd March 2018,*** wherein the Surveyor clearly indicated that there is no road captured in the Registry Index Map. 8. Further that the Mutation Forms produced by the Plaintiff/Applicant and even by Respondent( himself) did not show any road passing through the suit property; that the Plaintiff/Applicant is not his immediate neighbor, as he stays kilometers away from his home; and that the issue of access to the Plaintiff/Applicant’s home through his land does not arise. 9. That no material has been placed before this court for the orders sought to be granted; that the Plaintiff/Applicant will not suffer prejudice if the Application is dismissed as the road he is alleging to pass through the Defendant/Respondent’s Land does not exist, and the Plaintiff/Applicant does not pass through the Defendant’s land to go his home. 10. That the remedy in this suit lies in having this Application dismissed; as the said Application herein does not meet the threshold required for the grant of the orders sought. 11. The instant ***Notice of Motion Application*** was canvassed by way of Written Submissions. The Plaintiff/Applicant filed his written submissions dated ***23rd March 2026*,** in support of his Application wherein he raised the following issues for determination; 12. ***Whether the Plaintiff/Applicant has met the legal threshold for a review of the judgment of this court delivered on 30th January 2026.*** 13. ***Who should bear the costs of these proceedings.*** 14. On ***whether the Plaintiff/Applicant has met the legal threshold for a review of the judgment of this Court delivered* *on* *30th January 2026***, the Plaintiff/Applicant submitted on ***Section 80,*** of the ***Civil Procedure Act, CAP 21*** Laws of Kenya and ***Order 45 Rule******1*** of the ***Civil Procedure Rules 2010***, the legal provisions governing review of decrees and orders. 15. The above-mentioned provisions provide as follows; **Section 80** of the Civil Procedure Act: “***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 referred; or*** 2. ***by a decree or order from which no appeal is allowed by this Act,*** ***may apply for a review of the judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”*** 1. ***Order 45 Rule 1 (1)*** of the ***Civil Procedure Rules 2010,*** further stipulates that; **“*Any person considering himself aggrieved –*** 1. ***by a decree or order from which an appeal is allowed, but from which no appeal has been referred; or*** 2. ***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 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… may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.*** 1. It was further submitted that the Plaintiff/Applicant’s application is anchored on the alleged error *apparent on the face* *of the record* as well as a sufficient reason for review. To ***define what amounts to an error apparent on the face of the record****,* the Plaintiff/Applicant relied on the well settled case of ***National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR*** where the Court of Appeal held as follows; **“*A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established***.” 1. Similarly, the court in the case of ***Nyamogo & Nyamogo Advocates vs Kogo [2001] EA 173***, an error apparent on the face of the record was defined as follows: **“*… cannot be defined precisely… there is a 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 be reasonably be no two opinions, a clear case of error apparent on the face of the record would be rolled out*.”** 1. He further relied on the case of ***Republic vs Advocates Disciplinary Tribunal ex parte vs Apollo Mboya [2019] eKLR,*** where the court emphasized that an error apparent on the face of the record includes the failure by the court to consider relevant material placed before it. 2. He further submitted that the Defendant/ Respondent expressly admits the following: 3. ***a Certificate of Official search dated 13th February 2019, confirming existence of the said access road was produced in evidence.*** 4. ***A Field Survey Report dated 16th November 2020, by the District Surveyor confirming existence of the said road was also produced.*** 5. ***The said documents were not considered by this Honourable Court in its analysis and ultimate determination.*** 6. The Plaintiff/Applicant submitted that the omission clearly arises from the judgment itself where; at **Para 53**, the court faulted the Plaintiff/Applicant for failure to produce an ***Official search,*** which document was on record and referenced during cross-examination; and at **Para 72**, where the court similarly found that no report from the ***Surveyor or Land Registrar*** had been produced, which document is on record. 7. He submitted that in this case, the court did not arrive at a different conclusion after evaluating evidence, rather that material evidence was completely overlooked. Reliance was sought in ***Francis Origo & Another vs Jacob Kumali Mungala [2005] eKLR,*** where the Court of Appeal held that an error apparent on the face of the record may arise where the court fails to consider material evidence and that that is a proper ground for review. The Court in the case of ***Shanzu Investments Ltd vs Commissioner of Lands (Civil Appeal No. 100 of 1993*)** held a similar view. 8. On any other sufficient reasons, a s ground for review, the Plaintiff/Applicant relied on the case ***Wangechi Kimita & Another vs Mutahi Wakabira CA No. 80 of 1985 (unreported*)** where it was held that: “***Any other sufficient reason need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act. The Court further went on to hold that other grounds set out in the rule did not in themselves form a genus or class of things with which the third general head could be said to be analogous.*** ***The current position would, then appear to be that the court has unfettered discretion to review its own decrees or orders for any sufficient reason***.” 1. The Plaintiff/Applicant further submitted that the error in this case does not require extensive ***re-evaluation*** that it is evident from the judgment and the record before this court that the court state that no official search was produced while the record shows otherwise, same to the survey report. 2. He further submitted that the time period between ***30th January 2026****,* when the judgment was delivered and ***13th February 2026****,* when the application for review of the same judgment was filed, is well within the requirement under ***Order 45*** that an *application for review* ought to be filed without unreasonable delay. 3. It was the Plaintiff/Applicant’s further submissions that the omitted evidence goes to the substratum of the dispute. If the court had considered the Official Search and the District Surveyor’s Report, it would have arrived at a different conclusion. 4. Further that in this court’s ruling dated ***22nd March 2022***, the court had instructed that the road ***be reopened pending hearing*** ***and determination of the suit*** and consequently found the Defendant/Respondent in contempt on ***4th October 2023,*** for disobeying that order; which orders were based on the prima facie recognition of the road’s existence; and that the failure to consider the documentary evidence confirming that very fact create an inconsistency that can only be cured through review. 5. On who should bear the costs of the suit, the Plaintiff/Applicant relied on the case of ***Republic vs Rosemary Wairimu Munene, Ex-Parte-Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd,*** where the court held that the principle that costs follow the event is not to be used to penalize the losing party, but to compensate the successful party for the trouble it has undergone in prosecuting or defending the case; he submitted that given that the determination of the issues above is in his favor, he is entitled to the cost in the proceedings. 6. The Defendant/Respondent subsequently filed his written submissions dated ***13th April 2026,*** in support of his Replying Affidavit sworn on ***9th March 2026,*** and in opposition to the instant Application. 7. In his submissions, the Defendant/Respondent submitted that the Application before the Court ***is incompetent*** and that the same should ***be dismissed***; and that the Plaintiff/Applicant did not disclose any important evidence that could change the findings of the Court in its judgment dated **30th January 2026**. 8. He also submitted that it is true that the Plaintiff/Applicant produced a ***Search Certificate*** dated ***13th February 2026*,** alleging existence of a road passing through land parcel No. ***CIS-MARA/ENABELBEL/ENENGETIA/721,*** (Suit Property) and that he also produced a Search Certificated dated ***22nd December 2020,*** which did not show any road passing through the suit property. 9. He further submitted that the alleged ***Survey Report*** dated ***16th November 2020*,** produced by the Plaintiff/Applicant indicated that the road has been in existence since the time of demarcation and refers to plans that were never adduced before the court; that it was the Plaintiff/Applicant’s duty to called the makers of the documents to be relied upon as witnesses, which he never did, as was captured by the court in the said judgment. 10. That the ***Mutation Forms*** produced by the Plaintiff/Applicant did not show any road passing through the suit property; that the documents annexed to the Application herein remain uncorroborated by their makers; that the Defendant/Respondent being found in contempt of court orders did not mean that the Plaintiff had proved on the required standard that there was a road passing through the suit property; and that the Plaintiff/Applicant lives far from the Defendant/Respondent and there is no road passing through the suit property. 11. That a ***re-evaluation*** of the documents annexed in the instant application are not sufficient for the court to tamper with its judgment dated ***30th January 2026***; that the reasons in the said judgment are many and varied; and that the court extensively addressed the issues in the matter and that no material has been placed before it for the orders sought to be granted. 12. The Defendant/Respondent submitted that the Plaintiff/Applicant’s application ***lacks merit*** and is ***an abuse of*** ***court process*** and that the same should be dismissed with costs. 13. Having carefully considered the instant ***Notice of Motion Application*** dated ***13th February 2026,*** the Replying Affidavit sworn by the Defendant/ Respondent, the annexures thereto and the written submissions by the parties, this court finds the *issue for determination is whether the Plaintiff/Applicant instant Notice* of *Motion Application for Review meets the criteria for review of a judgment , and whether it is merited; who should bear costs of the Application?* 14. It is evident that the review of a judgment is governed by ***Section 80*** of the ***Civil Procedure Act*** and ***Order 45*** of ***the Civil Procedure Rules***, which grants Court discretion to review, and allows it to re-examine its own decision under strict, exceptional circumstances. 15. Such review is allowed where *there is a discovery of new and important evidence that could not be produced earlier despite the exercise of due diligence.* Where there *is a mistake or error apparent on the face of the record* such as misapplying a statute or failing to consider a crucial document in file .Any *other "sufficient reason’’* established that warrants judicial interference in the interest of justice. 16. The jurisdiction of the court to review its own judgment has variously been interpreted and pronounced by superior courts in several determinations. In ***Republic -vs-Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR,*** the Court set out the principles to consider in the review of its own decisions. It held as follows; i .***A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.*** ***ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.*** 1. ***An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.*** ***Iv .An erroneous order/decision cannot be corrected in the guise of exercise of power of review.*** 1. ***A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.*** 2. ***While considering an Application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.*** ***Vii .Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.*** ***Viii*** .***A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case*** ***the petitioner has not been able to point out any error apparent on the face of the record.*** 1. ***Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.*** 2. ***The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.*** 3. The Court of Appeal in ***Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau,*** stated as follows on review applications: - … ***A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law.*** 1. In ***Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [[2019] KEHC 6379 (KLR),*** the Court considered the import of some mistake or error apparent on the face of the record as captured in ***Order 45*** of the ***Civil Procedure Rules***, and held as follows; … ***Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review. The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible”***. 1. It is apparent that the Plaintiff/Applicant’s Application is hinged on the fact that the court in its determination made an error when it held in ***Para 53,*** that the Plaintiff did not produce ***Certificate of Official Search*** to proof that there exist an access Road, and that on ***Para 72***, the court faulted the Plaintiff for failure to call the officials from the Lands Office, yet the ***Field Report*** produced as exhibit was from the Ministry of Lands. 2. However, the court has considered the impugned Judgment, and it is evident that the court gave various reasons as to why it arrived at a finding that the Plaintiff/Applicant had not proved his case of the required standard of balance of probabilities, among others, failure to call the other alleged users of the said access road. The court did not dismiss the suit because of only failure to produce the ***Certificate of Official Search***. 3. If the Plaintiff/Applicant was aggrieved by the Judgment of this court of ***30th January 2026***, then the remedy was to lodge an Appeal before the Court of Appeal. Asking this court to ***reconsider*** the evidence afresh is tantamount to asking the Court to sit in its own Appeal. 4. In the case of ***Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR),*** the Court of Appeal emphasized that a review is not a chance for a trial court to sit on appeal over its own judgment to correct a perceived error in reasoning. If a court ***re-evaluates*** the merits of the evidence to reach a different conclusion, that would amount to an error in law. The Court of Appeal set out the limits of review, which should not be an Appeal. 5. In the case of **Nyamogo & Nyamogo v Kogo (2001) EA 170,** the Court discussed what would constitute a long-drawn process. It observed as follows; ***…. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a 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 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 possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal***. 1. The Supreme Court of Kenya in the case ***of Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others [2017] eKLR,*** set out exceptional circumstances under which the court can review its own decisions. These include: ***i). The judgment was obtained through fraud, deceit, or misrepresentation.*** ***ii). The judgment is a nullity because the court was not legally competent.*** ***iii). The court was misled into believing the parties had consented.*** ***Iv).The judgment was based on a repealed law or deliberately concealed statute***. 1. The Plaintiff/Applicant has not established any of the above exceptions to warrant this Court review its judgment. The Fact that the Court had earlier issued temporary orders did not mean that the Plaintiff/Applicant would eventually succeed in his claim, since he had a duty to marshal sufficient evidence and prove his case on the required standard as provided by the law. It is evident that ***temporary orders*** of whichever nature ***are temporary*** until the suit is heard and determined. 2. The contempt proceedings were in respect of the ***temporary orders,*** but was not an ***automatic proof*** of existence of an access road. This court finds and holds that the Plaintiff/applicant has not established any error apparent or any sufficient reasons to warrant review of the Court’s Judgment of 30th January 2026. 3. For the above reasons, this court comes to an inescapable conclusion that the instant Application is not merited, and the same ***is dismissed entirely*** with costs to the Defendant /Respondents. **It is so ordered**. **Dated, signed and delivered virtually at Narok this 28th day of May 2026.** **L. Gacheru** **Judge** **Delivered online in the presence of:** ***Elijah Meyoki – Court Assistant*** ***Mr. Mutai for the Plaintiff/Applicant*** ***Mr Nyabwocha for the Defendant/ Respondent*** ***N/A for the Interested Party.*** ***L. Gacheru*** ***Judge*** ***28/05/2026.***