https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5023

**THE REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ECLA CASE NO. E003 OF 2025** **NYABONYI MOMANYI-------------------------------------------APPELLANT** **VERSUS** **JOHN ONYANCHA OCHENGE----------------------------RESPONDENT** *(****Being an appeal against the ruling by Hon. S.K. Mutai (SPM), delivered on 20/7/2025 in Kitale CMC ELC No. E087 of 2024)*** **JUDGMENT** 1. The appellant, who was the defendant in the lower court, had been sued by the respondent, as the plaintiff, through a plaint dated **29/4/2024** seeking: 2. **An order of injunction restraining the appellant by himself, his servants, agents, assigns, representatives or nominees from trespassing onto the respondent's land, being the remainder of Kitale Municipality Block 18/Bidii/1793.** 3. **Costs.** 4. **Any other reliefs.** 5. In a subsequent application dated **16/1/2025**, the subject of this appeal, the respondent, as the applicant, sued the appellant seeking: 6. **Review of the orders made on 28/11/2024, dismissing the suit for want of jurisdiction.** 7. **The matter to be set down for hearing.** 8. **Costs of the application.** 9. The grounds of the application were that the trial court, on **28/11/2024**, found that the issue for determination was a boundary dispute to be determined by the Land Registrar first. Yet, there was evidence adduced that the Land Registrar had handled the dispute, which evidence had not been printed by the registry and placed before the court. The Land Registrar’s report dated **28/2/2024** was annexed as **JOO1**. 10. The application was unopposed despite a return of service dated **17/1/2025**. 11. On **20/1/2025**, the trial court delivered its ruling reviewing its orders issued on **28/11/2024** and fixed the suit for pre-trial directions. 12. The appellant, vide a memorandum of appeal dated **3/2/2025,** faults the trial court for: 13. **Allowing the application dated 16/1/2025 during a mention.** 14. **Deeming the application dated 16/1/2025 as unopposed, yet the appellant was not accorded adequate time to respond.** 15. **The application did not meet the threshold for review.** 16. **The grounds of the application were for an appeal and not review.** 17. **Arriving at a different finding since issues raised in the application had been considered in the preliminary objection dated 7/10/2024, subject to the directions of 28/11/2024.** 18. **Considering extraneous issues and leaving out material factors, to the appellants' prejudice.** 19. The appellant prays for the appeal to be allowed; the lower court's ruling dated **20/1/2025 to** be set aside and substituted therefor with an order dismissing the application dated **16/1/2025** and costs. 20. The appeal was canvassed by way of written submissions. 21. The appellant relied on written submissions dated **27/5/2026.** He submitted on five grounds of appeal. On the first ground, the appellant submitted that upon certifying the impugned application as urgent, the trial court fixed it for directions on **20/1/2025.** The trial court allowed the application despite coming up for a mention and not a hearing. The appellant submitted that he was not accorded an opportunity to be heard and that his right to fair hearing was violated. 22. On the proposition whether a court can make substantive orders during a mention, the appellant relied on the holding in ***Wanjiku v Esso Kenya Ltd (1995-1998) 1 EA 332 CAK,*** thata court has no business determining the substantive issues on that date, and that it can only do so, if the parties agree and upon compliance with the elementary procedure of hearing what submissions counsel may wish to make on behalf of the parties and that there must be good reasons for adopting a contrary procedure repugnant to the administration of justice. 23. The appellant submitted that there is no justification as to why the court allowed the application unopposed, when the same was not set down for hearing. 24. On ground number two of the appeal, the appellant submitted that under **Order 51 Rule 14** of the Civil Procedure Rules, anyone who wishes to oppose an application may file one or a combination of a notice of preliminary objection, or a replying affidavit or a statement of grounds of opposition, and the same shall be filed and served on the applicant not less than three clear dates from the date of the hearing. 25. The appellant submitted that the application first came up before the trial court on **17/1/2025** and the same was heard on **20/1/2025,** which was a mention date. The appellant submitted that it was contrary to procedure, and therefore, he was not accorded adequate time to respond to the application. 26. The next issue was whether the application met the threshold for review, yet it was based on appellate grounds. The appellant submitted that **Order 45** of the Civil Procedure Rules and **Section 80** of the Civil Procedure Act provide for review. Further, the appellant submitted that **Order 45 Rule 1** of the Civil Procedure Rules limits the jurisdiction of the court on review to; 27. *discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;* 28. *on account of some mistake or error apparent on the face of the record or;* 29. *for any other sufficient reason, and whatever the ground, there is a requirement that the application has to be made without unreasonable delay.* 30. The appellant submitted that the respondent’s ground for review was that there was an error of fact and law, which the trial court concurred with the respondent and allowed the application for review. According to the appellant, an error of fact or law or misapprehension of the same is not a ground for review but a ground of appeal, since the Land Registrar's report dated **28/2/2024** was raised during the hearing of the preliminary objection dated **7/10/2024.** On this proposition, the appellant relied on ***Perputua Mponjiwa -vs- Elius Okumu Otieno & 3 others [2017] KEHC 9053 (KLR) and National Bank of Kenya -vs- Ndungu Njau Civil Appeal No. 211 of 1996 (1995-98) 2 EA 249.*** 31. The other ground of appeal was whether the issues of the application had already been considered in the preliminary objection. Accordingly, the appellant submitted that the preliminary objection questioned the jurisdiction of the court; the issue of the boundary dispute had already been heard by the Land Registrar, which issue the appellant had raised in his submissions. 32. The appellant submitted that the trial court erred in finding that it had jurisdiction to entertain a boundary dispute in the ruling delivered on **20/1/2025**, contrary to the findings in upholding the preliminary objection, as doing the same was not only contradictory but also amounted to the court sitting on appeal of its own decision. The appellant submitted that the same was contrary to **Regulation 40(6)** of the Land Registration (General) Regulations, **2017**, which provides that an aggrieved party to the determination of the boundary dispute by the Land Registrar ought to file an appeal within **30** days. According to the appellant, the trial court erred in arriving at different findings on the same issue. 33. The respondent opposed the appeal through written submissions dated **11/7/2026.** He isolated six issues for determination. The first issue was whether this court should interfere with the trial court’s discretion in granting review. He submitted that where the impugned decision involved judicial discretion, the appellate court does not substitute its preference merely because it might have decided differently. He relied on ***Govani -vs- Shah & another; Jaff (Third party) (Civil Appeal 185 of 2019) [2024] KECA 1775 (KLR),*** where the court cited with approval ***Mbogo -vs- Shah*** that appellate interference is justified only where the lower court misdirected itself, acted on irrelevant matters, omitted relevant matters, or reached a clearly wrong conclusion. 34. The respondent submitted that the general rule, as held in ***Bogonko -vs- Rasugu (Civil Appeal 142 of 2019) [2025] KECA 485 (KLR),*** that a court should not finally determine contested substantive rights on a date reserved merely for mention or directions without giving affected parties a proper opportunity to be heard, should not be applied mechanically or without regard to context. 35. Relying on **Order 51 Rule 14(4)** of the Civil Procedure Rules, the applicant's application may be heard ex parte where it is unopposed. Further, that **Rule 14(2**) thereof requires opposition to be filed and served not less than three clear days before the hearing. It is not worded as a minimum period that must elapse “from the date of service of the application.” 36. Again, the respondent submitted that there was no replying affidavit, grounds of opposition or preliminary objection that had been prepared but shut out. That neither do the submissions identify an application for adjournment, enlargement of time or setting aside under **Order 51 Rule 15** of the Civil Procedure Rules. 37. Further, the respondent submitted that the present order did not enter final judgment against the appellant, evict him, determine ownership, adopt the Land Registrar’s report as judgment, or grant a permanent injunction. The appellant has the right to defend the suit, challenge the legal effect of the report, cross-examine witnesses and appeal any final decision. The respondent referred the court to the holding in ***Musila -vs- Thengi & 2 others (Civil Appeal 609 of 2019) [2025] KECA 750 (KLR)***, at paragraphs 20–27. 38. The respondent submitted that **Section 79A** of the Civil Procedure Act directs that no decree shall be reversed, substantially varied or remanded on account of an error, defect or irregularity in the proceedings unless it affects the merits or the jurisdiction of the court. 39. Further, the respondent relied on **Section 80** of the Civil Procedure **Act, and Order 45 Rule 1** of the Civil Procedure Rules that authorize review only for discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, provided the application is made without unreasonable delay. 40. On this issue, the respondent submitted that the error was factual, patent and ascertainable from the same record. The court struck out the suit on the basis that **Section 18(2)** of the Land Registration Act barred it from entertaining a boundary dispute, but there was a report on record by the Land Registrar. The respondent relied on ***National Bank of Kenya Ltd -vs- Ndungu Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR)***, ***Pancras T. Swai -vs- Kenya Breweries Ltd [2014] KECA 883 (KLR), Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR), Vision Afrika Housing Co-operative Society Ltd -vs- Mwangi & 3 others [2020] KEELC 3578 (KLR).*** 41. On the preliminary objection, the respondent submitted that it was not a pure point of law as it was founded on contested facts. On this proposition, the respondent urged the court to be guided by the holding in ***Pentagon Communications Ltd -vs- National Land Commission (Civil Appeal E035 of 2022) [2025] KECA 1304 (KLR)*** where the court cited with approval the case of ***Mukisa Biscuits***. 42. The respondent also relied on ***D.T. Dobie & Company (Kenya) Ltd -vs- Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR)***, and submitted that striking out of the entire suit was disproportionate. 43. The respondent urged the court to dismiss the appeal; uphold the impugned ruling; and allow the suit to proceed at the lower court. 44. The court has carefully gone through the memorandum of appeal, record of appeal, supplementary record of appeal and the written submissions and proceeds to determine the appeal as hereunder. 45. The role of this court is to reanalyze, reconsider, and review the record of the court below and come up with independent findings on both facts and the law. See ***Peter -vs- Sunday Post Ltd (1958) EA 424 and Selle & Another -vs- Associated Motor Boat C. Ltd & Others [1968] EA 123.*** 46. The crux of the appeal as discerned from the grounds is whether the trial court could review, as it did, the orders issued on **28/11/2025.** 47. **Section 80 of the Civil Procedure Act** and **Order 45** of the Civil Procedure Rules grant power to a court which has made an order to review, vary or set aside its orders or decree based on: 48. *Error or mistake apparent on the face of the record.* 49. *New and vital evidence or material which, with the exercise of diligence, was not available at the time the order or decree was made.* 50. In ***National Bank of Kenya -vs- Ndugu Njau 1997 eKLR***, the court held that review may be granted if there was an error or omission that was self-evident. In this appeal, the main issue in the review application was the Land Registrar’s report dated **28/2/2024**. 51. It is not disputed that the said report was in existence on record and had not been printed and placed before the trial court at the time it heard and determined the preliminary objection. This amounts to an error apparent on the face of the record which warrants review. 52. The trial court, despite having heard the application on a date said to have been a mention date, acted in the interest of justice to reinstate the suit for hearing on the merits. 53. Looking at the lower court record, the suit has since proceeded and is at the hearing stage. The defence hearing is scheduled for **4/8/2026.** It will therefore defeat justice to reverse and stall the wheels of justice. My considered view is that the review has not occasioned any prejudice to the parties as the suit shall be heard on merit and any dissatisfied party shall have a right to come back to this court on appeal 54. The upshot is the appeal lacks merits and is dismissed with costs. 55. Orders accordingly. **Judgment date, signed, and delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **31st** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Mr. Anwar for the appellant N/A for the respondent  **HON. G.M.GITONGA** **JUDGE, ELC KITALE.**