https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3024

National Land Commission v Wambugu (Miscellaneous Civil Application 2B of 2024) [2026] KEELC 3024 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3024 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Miscellaneous Civil Application 2B of 2024 EK Makori, J May 14, 2026 Between National Land Commission Applicant and Ephraim Kariuki Wambugu Respondent Ruling 1.Before this Court is an Application filed by the Applicant pursuant to Notice of Motion dated January 15, 2024, seeking the following Orders:a.Spent.b.Pending the hearing and determination of this Application, the Honorable Court be pleased to order a stay of the Judgment and/or decree in ELCA No. 1 of 2017.c.The Honorable Court be pleased to review, vary, and/or set aside its judgment delivered at Nyeri on the 27th day of April 2023.d.The Honorable Court be pleased to grant such other and further orders as it shall deem fit and just for the preservation of justice, given the nature and circumstances of this case.e.The costs of this Application will be in the cause. 2.The Application is supported by the uncommissioned affidavit of Brian A. Ikol, Director, Legal Affairs and Alternative Dispute Resolution Directorate. He traced the origin of this matter to Gazette Notice No. 1466, dated 12th January 2007, in which the Commissioner of Lands expressed the intention to acquire parcel No. Aguthi/Gatitu/3347, Nyeri, for a Farmer’s Training Centre. 3.The said Gazette Notice informed the public that a hearing for compensation claims in respect of the said parcel was scheduled for 12th April 2007 at the District Commissioner’s Office, Nyeri, which, according to them, did take place. 4.In conformity with Section 10 of the Land Acquisition Act (CAP 295), the Commissioner prepared a written award of Kshs.145,595,750/= dated December 16th, 2007, as per the Market Value, and the Ministry of Agriculture deposited the amount with the Ministry of Lands, which was acquiring the same. 5.However, the Commissioner did not pay the beneficiaries owing to the lawful heirs to whom the said sum was to be paid, as per the orders on High Court Civil Case No.9 of 2009, that the sum be deposited pending the hearing and determination of the aforesaid suit. 6.After judgment in the aforesaid High Court suit was entered on September 23, 2015, the Respondents herein moved to this Court, challenging the award by way of an appeal from the Commission's decision. 7.In addition, the Respondent did not join the Ministry of Agriculture as a party to the Appeal proceedings, despite its pivotal role in the acquisition of the subject property. As a result of the Applicant's non-attendance and the exclusion of the Ministry of Agriculture from the Appeal proceedings, the Honor Court did not hear their testimony regarding how they arrived at the sum of Kshs.145,595,750/=. 8.According to the Applicant, as a result of the Respondent's erroneous representation, public funds amounting to Kshs.729,100,000/= stand to be paid to the Respondent, which they deem unjust enrichment. The Respondent’s Case 9.Former Counsel for the Respondent filed what has been titled a Preliminary Objection to the instant application, but it is drafted in the manner of written submissions dated 26th February 2024 by their former advocates, Ms. Wanyiri Kihoro Advocates, and the matter of the Respondent’s representation remains in contention. 10.The Respondent contends that the application seeks a review of a judgment but does not advance any specific reason, ground, or area of review that is capable of review. 11.Noting that no party appealed the judgment, they submit that the judgment did not have to be accepted by either party, but that it addressed all the pertinent issues raised in the appeal and was clear, fair, and just to both parties. 12.Relying on Order 45 of the Civil Procedure Rules, it is submitted that the evidence that the government or its agents hold money is evidentially important and could occasion the review of a judgment. 13.Secondly, they noted that the Applicant is seeking review of a judgment 10 months after it was delivered in open court on April 27, 2023, and that the Applicant failed to attend court even after being served with the appeal documents. 14.Regarding the Applicant’s allegation that the Court was misled about the amount to be compensated, the Respondent submitted that the Court evaluated all the evidence on record, including valuation reports, and that no advantage was taken because of their non-appearance or the exclusion of the Ministry of Agriculture. 15.They also added that the figure of Kshs. 729,100,000/= was not included in the judgment, and that just compensation cannot be considered unjust enrichment. 16.They are therefore opposed to review without a compelling reason, relying on the case of Republic v Medical Practitioners & Dentists Board & Another & Another; MIO1 on behalf of MIO2 (a Minor) & Another (Interested Party); Kingángá (Ex parte) (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR) (Judicial Review) (16 November 2021) (Ruling). The Respondent’s Grounds of Opposition 17.The firm of Joan Emma Advocates, the Respondent’s Advocate, filed an application dated 3rd May 2024 to enter an appearance on his behalf and filed Grounds of Opposition dated 16th February 2026, opposing the instant application on the following grounds:a.The application is fatally defective for want of a Supporting Affidavit sworn and commissioned in compliance with Section 5 of the Oaths and Statutory Declarations Act, prescribing the particulars to be stated in the jurat. Consequently, the grounds on the face of the application lack evidential support.b.In any event, the application is a non-starter. It should be dismissed forthwith for seeking to review, set aside, and vary a judgment and decree in the present cause, where no judgment has been delivered to warrant the Court exercising its discretion under Order 45 of the Civil Procedure Rules.c.The power to review, set aside, or vary a judgment and decree can only be exercised in affected proceedings. Therefore, this Honourable Court lacks jurisdiction to entertain the application as the record for the basis of review is not contained in the present proceedings.d.Issuing review orders, varying or setting aside judgment and decree through the present miscellaneous cause, is tantamount to sitting on appeal of a judgment delivered in separate proceedings without the Court being duly moved in the relevant proceedings.e.Without prejudice to the above, the grounds upon which the review and setting aside are sought are unmerited and unjustified for the following reasons:a)The Court of Appeal in the case Five Star Agencies Limited & another v National Land Commission & 2 others [2024] KECA 439(KLR) held that the role of the acquiring authority under Section 111 of the Land Act is limited to depositing the compensating amount with the applicant and lacks the necessary locus standi to institute or be a party to proceedings, and that any dispute is primarily against the applicant.b)The applicant has not explained the reasons for non-attendance in the relevant proceedings or the new evidence or material to justify review of the proceedings, judgment, and decree of the Honorable Court.c)None of the grounds set out in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules has been satisfiedf.Consequently, the application dated 15th January 2024 is unmerited and should be dismissed with costs. Analysis and Determination 18.The instant application seeks to review the judgment of the Court in Nyeri ELCA Appeal Number 1 of 2017(formerly Nairobi ELCA No.99 of 2015) delivered on the 27th day of April 2023. 19.The statutory provisions that govern the review of orders and decrees are Section 80 of the Civil Procedure Act, Cap 21, and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides 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 by a decree or order from which its term on 1st October 1976.b.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.” 20.Order 45 Rules 1 of the Civil Procedure Rules (2010) provides that:“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.” 21.As is evident from the wording of Section 80 of the Civil Procedure Act and Order 45 of the Rules, an order of review is made to the Court which passed the impugned decree. In this case, the Applicant abandoned the original suit and filed this miscellaneous application. Without access to and review of the actual suit file that delivered the judgment, the Court does not have the benefit of reviewing all the Court pleadings and proceedings in that file; it is not competent to decide this application. 22.Naikuni J., in the case of Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2025] KEELC 4621 (KLR), summarized the requirements as set out by the Court of Appeal in the case of Vallabhdas Karsandas Raniga v Mansukhlal Jivraj and Others (1965) 1 EA 700 (CAN) as follows:“a.There should be a person who considers himself aggrieved by a Decree or order;b.The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;c.A decree or order from which no appeal is allowed by this Act;d.There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; ore.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.f.The review is by the Court which passed the decree or made the order without unreasonable delay.” 23.Further, it is my view that the Applicant has not met any of the conditions as set out in the statutory provisions and precedents cited above, as there is no error apparent or mistake on the face of the judgment as delivered, neither have they introduced any new evidence that could not have been within their knowledge at the time of the hearing of the case, nor is there any sufficient reason to review the said judgment. In my opinion, it appears as though the Applicant is seeking an appeal of the judgment in the wrong manner and forum. 24.Mativo J, as he then was, observed as follows regarding orders of review in the case of Republic v Medical Practitioners & Dentists Board & Another & Another; MIO1 on behalf of MIO2 (a Minor) & Another (Interested Party); Kingángá (Ex parte) (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR):“A review of a judgment is a serious step and it can only be resorted where a glaring omission or patent mistake or like grave error has crept in the judgment or order by judicial fallibility but not where the judge has misapplied, misinterpreted or misconstrued the law or facts. The power of review can be exercised for correction of a mistake but not to substitute a view. Put differently, the grounds cited are attacks on the judgment and good grounds of appeal. They cannot and do not qualify to be grounds for review. It is a clear invitation to this Court to exercise appellate jurisdiction on its own judgment. I decline the invitation to do so. On this ground, the applicants’ application collapses." 25.Further, the supporting affidavit in the application has not been signed and stamped by a qualified Commissioner of Oaths. The law governing the commissioning of affidavits is set out in the Oaths and Statutory Declarations Act, Cap 15, Laws of Kenya. Section 2 defines a Commissioner of Oaths as a person appointed by the Chief Justice and gazetted to administer oaths and take affidavits. Section 4 provides that every Commissioner shall state in the jurat the place and date on which the oath or affidavit is taken. 26.In Muktar Bishar Sheikh v Independent Electoral & Boundaries Commission & 2 others (supra), the Court, in striking out the affidavits, relied on Black’s Law Dictionary’s definition of an affidavit as follows –“...Black’s Law Dictionary defines an affidavit as a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a Notary Public. An affidavit therefore must be voluntary, written and commissioned. If any of these three ingredients is missing, then that document is not an affidavit. In this case the purported supporting affidavit is not commissioned. That document cannot be called an affidavit as known in law.” 27.I therefore opine that the affidavit sworn on the Applicant’s behalf should be expunged from the record, and that the documents attached to it cannot be deemed properly produced before the Court. 28.For the reasons stated above, the entire miscellaneous application lacks merit and is hereby dismissed in its entirety. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 14TH DAY OF MAY 2026.____________________________E. K. MAKORIJUDGEIn the presence of:Mr.Kihoro and Mr. Pamba for the RespondentKendi: Court AssistantIn the Absence of:The NLC