https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3448

Muthama v Shadrack (Sued in Her Capacity as the Personal Representative of the Estate of Shedrack Wambua Kivai - Deceased) (Environment and Land Case E086 of 2021) [2026] KEELC 3448 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3448 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case E086 of 2021 AY Koross, J June 9, 2026 Between Antony Mwaka Muthama Plaintiff and Lydia Mwikali Shadrack (Sued in Her Capacity as the Personal Representative of the Estate of Shedrack Wambua Kivai - Deceased) Defendant Ruling 1.This ruling concerns the plaintiff’s notice of motion dated 1 September 2025, which is presented as made pursuant to Sections 3, 3A and 80 of the Civil Procedure Act, Sections 13(7) and 19(3)(f) of the Environment and Land Court Act, and Order 45(1)(a) and (b) of the Civil Procedure Rules. He seeks the following reliefs from this court: -a.That the judgment delivered in this suit on 25 June 2025 be reviewed and the defendant be ordered to transfer to the plaintiff a piece of land containing by measurement ten (10) acres from the resultant subdivisions of Title No Donyo Sabuk / Komarock Block 1 / 12374.b.That the cost of this application be provided for. 2.The motion is supported by the grounds on the face thereof and by the supporting affidavit of the plaintiff, sworn on the instant date. In brief, he states that in the impugned judgment, this court found and held that the defendant held 10 acres of land, previously known as parcel no. Donyo Sabuk / Komarock Block 1 / 12374, in trust for the plaintiff, in spite of this, the court ultimately dismissed his case. 3.To him, at no time during the trial did the defendant testify that the resultant subdivisions of Title No. Donyo Sabuk / Komarock Block 1 / 12374, where his ten acres are domiciled, were registered in the name(s) of persons other than herself. Therefore, it behoved the court to order the defendant to transfer the ten acres to him, which ten acres are contained in the resultant subdivisions of Title No. Donyo Sabuk / Komarock Block 1 / 12374. 4.In opposition, the defendant filed a notice of preliminary objection (PO) dated 6 February 2026 that raises the following points of law: -a.The plaintiff’s application is incompetent and mischievous; it is frowned upon and defeated by the provisions of Section 7 of the Civil Procedure Act.b.The application is rendered incompetent by dint of want of threshold earmarked under 0.45 Rule 1 of the Civil Procedure Rules. 5.This court issued directions on the filing of written submissions, but at the time of writing this ruling, only the plaintiff’s law firm on record, Ms. L N. Ngolya & Co. Advocates, filed written submissions dated 10 March 2026. Now, turning to the substance of the matter at hand and having carefully considered the motion, affidavit, PO and plaintiff’s submissions, including the provisions of the law and judicial precedents relied upon, the issues for determination are a) whether the PO meets the legal threshold and, if so, whether the grounds are merited and b) whether the motion meets the legal threshold for review of the judgment of 25 June 2026. 6.In regards to the first limb, the well-cited decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696 has long established the tests that a PO must satisfy, and it is vital to reaffirm the relevant principles derived from the landmark case, which articulated that:“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 7.In affirming Mukisa Biscuit (Supra), the Supreme Court of Kenya in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) emphasised the following on the threshold of a PO: -“Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 8.Thus, based on these principles, when addressing this issue, the court will inquire whether the points of law are clear; whether the facts are settled and correct; do not necessitate further ascertainment; and whether the court is not being asked to exercise its prudent discretion. Accordingly, having considered the grounds of the PO that question this court's jurisdiction, this court determines that the legal issues concerning its jurisdiction are purely legal matters that may resolve the entire suit. Furthermore, it is now settled that jurisdiction is everything; without it, the court must lay down its tools. Having established that the PO has met the threshold, we will now delve into the second limb and establish if it is merited. 9.In relation to the first ground of res judicata and in the absence of submissions from the defendant, this court has been unable to evaluate the relevance of this legal point, as it has not previously considered a similar application in this matter. Consequently, in agreement with the plaintiff, the court finds that this aspect of the PO, concerning the issue of res judicata, is unfounded and lacks merit. 10.With respect to the second aspect, the relevant provisions governing the review of court decisions are set out in Section 80 of the Civil Procedure Act and Order 45, Rule 1 of the Civil Procedure Rules. Section 80 states that;“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.” 11.Further, Order 45 Rule 1 (1) of the Civil Procedure Rules provides as follows: -“(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; 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.” 12.In line with established jurisprudence, higher courts have interpreted the aforementioned provisions in this way: -In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR), the court summarised the following non-exhaustive principles:“ 30.The principles which can be culled out from the above-noted authorities are: -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.iii.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.v.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.vi.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.ix.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.x.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.” 13.Similarly, in the decision of the Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau, which has been cited in a line of court decisions, the court 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.” 14.In the circumstances of this case, the plaintiff has not demonstrated that the basis of the motion involves an obvious error on the face of the impugned orders, a new and important matter, or a mistake, but rather the ground of sufficient cause. In advancing this ground, he is reiterating reasons why the court should not have dismissed the suit, despite some of its findings. It is also evident that he has overlooked the court's reasons and findings in dismissing the suit. This court need not say more in this regard. 15.Be that as it may, guided by paragraph 32 of the Supreme Court’s decision in Parliamentary Service Commission v. Wambora & 36 others [2018] KESC 74 (KLR) which held that an application for review is not an appeal or a chance for the applicant to re-argue his case, the court finds that the plaintiff is attempting to re-argue his case, which is not permissible in review proceedings. This court further finds that it is functus officio and finds that the grounds raised are not suitable for review but are appropriate for an appeal. Consequently, this court finds that the 2nd limb of the PO is merited. 16.In the end, and for the reasons and findings set out above, this court finds the PO dated 6 February 2026 merited and allows it. The notice of motion dated 1 September 2025 is hereby struck out. Each party shall bear their respective costs in relation to the notice of preliminary objection and the notice of motion.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Ngolya for applicant.Miss Angote for Mr. Nzaku for respondent.