Mwangi & another v Kibowen (Civil Appeal E189 of 2021) [2026] KECA 1503 (KLR) (24 July 2026) (Judgment)

**IN THE COURT OF APPEAL AT ELDORET** **(CORAM: GACHOKA, KORIR & NDOLO. JJ.A.) CIVIL APPEAL NO E189 OF 2021** **BETWEEN** **ELIUD NJUGUNA MWANGI ………………………..….. 1ST APPELLANT** **MICHAEL MWANGI 2ND APPELLANT** **AND** **JOHN KIBIWOT KIBOWEN RESPONDENT** *(Appeal from the Ruling of the Environment and Land Court at Eldoret (Odeny, J.) delivered on 29th October 2020* ***in*** ***ELC Case No 299 of 2012)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **JUDGMENT OF THE COURT** 1. This appeal arises from a ruling dated 29th October 2020, by which **Odeny, J** dismissed the appellants’ notice of motion dated 18th July 2018. In the application, the appellants had sought review of an order of the court issued on 12th July 2018, adopting a report by the Uasin Gishu County Surveyor dated 31st July 2017, as the basis for implementation of a judgment of the court dated 15th October 2014. 2. In the judgment dated 15th October 2014, the learned Judge (Munyao Sila, J. (as he then was)) had determined that the respondent was entitled to 5.5 acres of the suit property known as KARUNA/SOSIANI BLOCK 2 (PROGRESSIVE) 289. The court had directed that the said portion be excised in favour of the respondent in terms of the survey report dated 31st July 2017. 1. Post judgment, an application dated 14th July 2015, filed by the respondent was compromised by a consent recorded by the parties on 27th October 2015. The consent was to the effect that the 5.5 acres to which the respondent was entitled, would be excised from KARUNA/SOSIANI BLOCK 2 (PROGRESSIVE) 289 by the County Surveyor, Uasin Gishu County with the supervision of the Officer Commanding Moiben Police Station. 2. The surveyor prepared a report dated 22nd February 2016, whose recommendations, the trial court directed, be implemented in excision of 5.5 acres in favour of the respondent. As per the recommendations, the surveyor was to re-establish the boundaries of parcels number 325, 326 and 327. A subsequent surveyor’s report dated 31st July 2017 was filed in court. 1. On 24th October 2017, the parties agreed to have the property resurveyed in order to establish the boundaries and the court issued an order to that effect. This agreement was however not executed and on 12th July 2018, the court adopted the surveyor’s report dated 31st July 2017. The report established that the respondent was in occupation of 5.5 acres of parcel number KARUNA/SOSIANI BLOCK 2 (PROGRESSIVE) 289 in terms of the court judgement. The appellants were dissatisfied with the report, maintaining that the position on the ground showed that the portion occupied by the respondent exceeded 5.5 acres. 1. The appellants moved the court by an application dated 18th July 2018 seeking orders to set aside/vary the orders of 12th July 2018 adopting the surveyor’s report dated 31st July 2017. The appellants sought a further order adopting the surveyor’s report dated 22nd February 2016. The appellants alleged that they were not served with the surveyor’s report dated 31st July 2017 and adopted in court on 12th July 2018. They contended that the sketch maps annexed to the report dated 22nd February 2016 and the one dated 31st July 2017 were different with no explanation. They argued that despite parties having agreed on 24th October 2017, to conduct a site visit for resurvey and preparation of a new report, the respondent became uncooperative and difficult. 2. In its ruling dated 7th May 2019, the trial court adjudged that the County Land Surveyor had been cross-examined on the two reports dated 22nd February 2016 and 31st July 2017 and the inconsistencies clarified. The court proceeded to adopt the County Surveyor’s report dated 31st July 2017. 3. This prompted the appellants to file another application dated 20th July 2020, seeking orders to set aside/vary the order adopting the report dated 31st July 2017. The appellants further sought orders summoning the County Surveyor for cross examination on the report dated 31st July 2017 and a resurvey of parcel number KARUNA/SOSIANI BLOCK 2 (PROGRESSIVE) 289. 1. The appellants’ position in the application was that there was an error apparent on the face of the report dated 31st July 2017 as well as the annexed sketch map and that an alternative surveyor’s report dated 5th March 2020 had revealed that the total acreage excised in favour of the respondent by the County Surveyor was 6.58 acres and not 5.5 acres contrary to the orders of the court. 2. In his replying affidavit dated 20th July 2020, in opposition to the application, the respondent contended that the issue of cross examination of the County Surveyor raised in the application was already determined in a ruling dated 7th May 2019, flowing from the appellants’ application dated 18th July 2018, challenging the surveyor’s report. 3. In a ruling dated 29th October 2020, the trial court dismissed the appellants’ application, asserting that it had failed to meet the legal threshold for review. The court further held that the prayer for summoning of the County Surveyor was *res judicata*, the matter having been determined in a ruling dated 7th May 2019. It is this determination that is the subject of the appeal before us. 4. In their memorandum of appeal dated 14th October 2021, the appellants raise the grounds that; the trial court dismissed their application without a proper reason, misdirected itself in finding that the surveyor’s report dated 31st July 2017 was credible despite an error apparent on the face of the record, failed to consider the documentary evidence presented by the appellants and, awarded the respondent more than 5.5 acres of the suit property. 1. The appeal came up for hearing before us on 25th May 2026, with learned counsel Mr. Seda appearing for the appellants and learned counsel Mr. Tororei appearing for the respondent. The parties relied on their written submissions. 2. In support of their appeal, the appellants had filed submissions dated 21st May 2026 and supplementary submissions dated 22nd May 2026. They argued that there was an error apparent on the face of the report dated 31st July 2017. According to the appellants, the report by their appointed surveyor M/s Prestolan Real Estate & Properties amounted to new information. 3. In his submissions dated 21st May 2026, the respondent argues that the appeal is devoid of merit and an abuse of the court process. He submits that the issues raised are *res judicata* having been conclusively determined by the trial court in its ruling dated 7th May 2019. 4. The respondent further submits that the report prepared by the appellants’ private surveyor M/s Prestolan Real Estate & Properties does not constitute new and important evidence within the meaning of the law as the surveyor was engaged after the impugned ruling and thus the evidence, could with due diligence, have been obtained earlier. 1. The respondent accuses the appellants of delay in filing the application, stating that the application dated 20th July 2020 sought to review orders issued in the year 2019. They relied on this Court’s decision in ***Afapack Enterprises Limited vs Punita Jayant Acharya (suing as the Administrator of the Estate of the late Suchila Anantrai Rayal) [2018] KECA 601 KLR*** for the proposition that applications for review must be brought without unreasonable delay. 2. In the ruling which is the subject of this appeal, the learned trial Judge distilled the issues for determination as follows: ***“The issues for determination are whether the applicants have established grounds for review and whether the application is res judicata.”*** 1. This appeal therefore turns on two points of law; first is the question of review as a judicial remedy. On this limb, the appellants rely on ***Section 80*** of the Civil Procedure Act and ***Order 45 Rule 1*** of the Civil Procedure Rules. Owing to the centrality of these provisions, we have taken the liberty to reproduce them. ***Section 80*** of the Civil Procedure Act provides as follows: 1. ***Review*** ***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 preferred; or*** 2. ***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.*** 1. ***Order 45 Rule 1*** of the Civil Procedure Rules provides that: 2. ***Any person who considering himself aggrieved-*** 1. ***by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*** 2. ***by a decree or order from which no appeal is 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, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.*** 3. ***A party who is not appealing from a decree or order may apply for a 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 respondent, he can present to the appellate court the case on which he applies for the review.*** 4. The bounds of review are well established. In its decision in ***National Bank of Kenya Ltd vs Njau [1997] KECA 71 (KLR)*** this Court stated the following: ***“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 proceeded on an incorrect exposition of the law.”*** 1. In the impugned ruling, the learned trial Judge stated the following: ***“The fact that the applicants engaged a private surveyor after the fact is not new evidence. The applicants had an opportunity to engage such private surveyor at the time the County Surveyor was doing his work to compare notes but they did not do so. This is surely an afterthought to derail the implementation of the court order. The application for review is a disguise to appeal indirectly which is an abuse of the court process.”*** 1. We agree with the conclusion reached by the learned trial Judge in this regard. In our view, the appellants’ plea was not an application for review, but an attempt to re-open the case afresh, to introduce new evidence in the form of an alternative survey report. Such a move cannot be sustained in an application for review, as drawn out arguments would be required to navigate through the two rival survey reports. 2. The second issue is on *res judicata*. ***Section 7*** of the Civil Procedure Act provides as follows: ***7. Res Judicata*** ***No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.*** 1. The import of ***Section 7*** of the Civil Procedure Act was well articulated by this Court in its decision in ***Kithaka vs Wangari [2026] KECA 255 (KLR)*** in the following terms: ***“That provision prohibits the court, in absolute terms, from entertaining a suit that raises issues already heard and finally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them. As has been stated time without number, the doctrine of res judicata rests on the salutary principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over.”*** 1. In its decision in ***Kenya Commercial Bank Ltd vs Muiri Coffee Estate & Another [2016] eKLR*** the Supreme Court affirmed that *res judicata* is a doctrine of substantive law that secures order and efficacy in the adjudication process, by ensuring that litigation comes to an end. 2. There is evidence on record that the issues raised by the appellants in their application dated 20th July 2020 had been raised in their earlier application dated 8th July 2018 on which a ruling had been rendered on 7th May 2019. The application of 20th July 2020 was therefore *res judicata* and the learned Judge proceeded within the law to reject it. Having carefully considered the record of appeal and the submissions, we agree with the learned Judge that the issues raised had been determined and could not be raised afresh. 3. Consequently, this appeal fails and is dismissed with costs to the respondent. **Dated and delivered at Eldoret this 24th day of July, 2026.** **M. GACHOKA C.Arb, FCIArb** **…………………….………………..** **JUDGE OF APPEAL** **W. KORIR** **…………………….……………….** **JUDGE OF APPEAL** **L.M. NDOLO** **…………………….……………....** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***DEPUTY REGISTRAR.***