https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4255

Ole Kuronoi v Ole Kondonyo (Environment and Land Case E515 of 2017) [2026] KEELC 4255 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4255 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Case E515 of 2017 LN Gacheru, J July 9, 2026 Between David Rakoi Ole Kuronoi Plaintiff and Morosua Ole Kondonyo Defendant Ruling 1.The matter for determination is the Plaintiff/Applicant’s Notice of Motion Application dated 3rd March 2026, brought under Article 159 of the Constitution of Kenya, 2010, Sections 3,3A and 80 of the Civil Procedure Act, Order 22 Rule 25, Order 45 Rules 1(b), and Order 51 rule 1 of the Civil Procedure Rules, 2010 and sections 79 and 80 of the Land Registration Act of 2012 and all other enabling provisions of the law, wherein the Applicant has sought for the following prayers:i.That this Honourable Court be pleased to review and vary its ruling delivered on 19th December 2025 on account of mistake or error apparent on the face of the record, or for any other sufficient reason and review the order that the OCS Duka Moja Police Station be directed to provide security during the said eviction to read the OCS Nairegie Enkare Police Station.ii.That this Honourable court be pleased to review and vary its judgement delivered on 22nd March 2023 and the decree issued on 31st March 2025 delivered on the ground that the Applicant/plaintiff has been issued with a title to suit land upon registration being Cis-mara/Suswa Kitet/988.iii.That this Honourable court be pleased to direct the OCS Nairage Enkare Police Station to provide security during the eviction of the Defendant/Respondent.iv.That costs of this application be borne by the Respondent. 2.The application is premised on the grounds set on the face of the application and on Supporting the Affidavit of David Rakoi Ole Kuronoi sworn on the same day. 3.Among the grounds in support of the Application are; that when this suit was instituted, the Plaintiff/Applicant had only been allocated the suit land, which had plot number being all that parcel of land known as Land Parcel No. Suswa Kitet Group Ranch 778, and issued with a beacon certificate. That since the suit land was still under adjudication, he sought the consent of the District Land Adjudication and Settlement Officer, Narok District to file the said suit, which consent was granted. 4.The Applicant further averred that Judgment was entered in his favor on 22nd March 2023 declaring that Land Parcel No. Suswa Kitet Group Ranch 778, was properly and legally allocated to the plaintiff, and that the Defendant should vacate the same parcel within 90 days. 5.Further, that he was issued with a title deed over the suit land by the Land Registrar Narok Land Registry on 14th June 2023, and which was referenced Cis-mara/Suswa Kitet/988, in his name. He annexed the said title and marked it ‘DROK. 6.The applicant further averred that Land Parcel No. Suswa Kitet Group Ranch 778, is the same as CIS-Mara/Suswa Kitet/988, and therefore, it is necessary to review the Judgment and decree of this Court to refer to the suit land as per the title deed which he possesses. 7.Regarding the proper Police Station that should execute the Decree of this Court, the applicant referred to his application dated 1st July 2025, wherein he sought orders directing the OCS Duka Moja Police Station to provide security during eviction of the Defendant from Land Parcel No. Suswa Kitet Group Ranch 778, and which application was allowed. 8.He avers that upon extracting and serving the said Court Order at Duka Moja Police Post, he was informed that the Post did not have an Officer Commanding Station (OCS), and he was directed that the said Order be served upon the OCS Nairegie Enkare Police Station, as Duka Moja Ploice Post was under the said Police Station. The order was then served upon the OCS Nairegie Enkare Police Station, but it could not be enforced because the same was directed to the OCS Duka Moja Police Post. 9.That the OCS Nairegie Enkare Police Station then wrote a letter to this Court confirming that indeed the suit property falls within his jurisdiction, and which letter is annexed at paragraph 16 of the Supporting Affidavit and marked ‘DROK 3’: For this reason, the applicant prayed that the Order of this Court be reviewed, and be addressed the OCS Nairegie Enkare Police Station. 10.The application is unopposed, despite service of the same upon the Defendant, as evidenced from the Affidavits of Service sworn by Mogire Robert Kennedy on the 4th May 2026 and that of Wilfred Nyaundi Konosi, sworn on the 5th May 2026 ,serving the hearing date upon the Defendant/Respondent. 11.Accordingly, the Plaintiff/Applicant filed his written submissions dated 14th May 2026, in support of the instant application. 12.The Applicant set out the issues for determination as follows:a.Whether the application for review is merited?b.Who should bear the costs of this application 13.On whether the instant application is merited, the Plaintiff/ Applicant submitted that since the Defendant did not file a Replying Affidavit or oppose the application, then this Court should draw an inference of admission against the Defendant/ Respondent. 14.He relied on the case of Republic v Chief of General Staff & another [2017] KECA 524 (KLR) where the appellant did not counter a Replying Affidavit wherein, one of its annextures was a questionnaire demonstrating that the appellant responded in the affirmative that he was availed charges not less than 24 hours to the hearing, and did not raise any objections to the said charges, and admitted he had enough time to prepare for trial and that it was not necessary for his accusers to attend court for cross-examination. 15.The Plaintiff/Applicant urged this court to place more emphasis on the courts declaration that; “The failure to controvert all the above negates allegations of breach of rules of natural justice, bias, yielding to external pressure, failure to consider all the relevant considerations and alleged unreasonableness of the resultant award.” 16.Further, the Plaintiff/Applicant relied on Section 80 of the Civil Procedure Act which 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; orb.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’’. 17.The Plaintiff/ Applicant also relied on Order 45(1) of the Civil Procedure Rules which states: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. 18.The plaintiff/Applicant buttressed this this provision of law with the holding of the Court of Appeal in Onganga Vs Orieri & 2 others (Civil Appeal 93 of 2019) [2025] KECA 1162 (KLR) 20 June 2025) (Judgment) which affirmed the main grounds of review as discovery of new and important matter or evidence; mistake or error apparent on the face of record; or for any other sufficient reason and most importantly, the application has to be made without unreasonable delay. 19.Further, the Plaintiff/ Applicant submitted that when he was allocated the suit land, it was not registered because it was under adjudication, and was known as Land Parcel No. Suswa Kitet Group Ranch 778, and that this forced him to seek consent from the District Land Adjudication Settlement Officer-Narok District before filing this suit. 20.Further, that the suit was concluded before the completion of the adjudication process, and Judgment was entered in his favor on 22nd March 2023. On 14th June 2023, he was issued with a tittle deed registered as Cis-mara/Suswa Kitet/988, after the completion of the adjudication process. 21.Therefore, the Applicant seeks for review of the judgment of this court to reflect the current position, and new developments over the suit property as well as the Ruling of 19th December 2025, directing the OCS, Nairegie Police Station to provide security during eviction of the Defendant/Respondent as opposed to the non-existent OCS of Duka Moja Police Station. The Court has carefully considered the instant application, the annexures thereto, and written submissions, and finds the following issues arise for determination:i.Whether this court has the jurisdiction to review the judgment on 22nd March 2023, and well as the Ruling of 19th December 2025.ii.Who bears the costs of these proceedings? Whether this court has the jurisdiction to review the judgment on 22nd March 2023 and well as the Ruling of 19th December 2025. 22.The jurisdiction of this Court to review its own orders is neither inherent nor unlimited; it is a statutory jurisdiction expressly conferred by Section 80 of the Civil Procedure Act and circumscribed by Order 45 of the Civil Procedure Rules. 23.Section 80 of the Civil Procedure Act provides as follows:“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.” 24.This provision opens up a narrow window for an aggrieved party to approach the court, but such an approach must strictly conform with the Civil Procedure Rules which operationalizes this provision. Further, Order 45 Rule 1(b) delimits the circumstances under which the Court may review its own judgment. This provision is explicit that an applicant must satisfy the court that:a.There is 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.b.There is some mistake or error apparent on the face of the recordc.That there is sufficient reason to warrant the review sought and that the application had been made timeously. 25.The Plaintiff/ Applicant herein has not satisfied the court of any of the foregoing thresholds. What the Plaintiff/ applicant has done is actually bring out new evidence in the form of a title deed for Land Parcel No. Cis-mara/Suswa Kitet/988 as annexture ‘DROK 1’ under paragraph 7 of his Supporting Affidavit, which he alleges is similar to land parcel No. Land Parcel No. Suswa Kitet Group Ranch 778 wherein the Court ordered the Defendant/ Respondent to vacate. It is this new evidence that the Plaintiff/ Applicant refers to as error apparent on the face of the record and wishes this Court to review its judgment 22nd March 2023, and the decree issued on 31st March 2025. 26.With the above sought review, the Defendant/ Respondent will now be ordered to vacate Land Parcel No. Cis-mara/Suswa Kitet/988, instead of the initial Land Parcel No. Suswa Kitet Group Ranch 778. There are two different land parcels, and it is not clear why the Plaintiff/Applicant did not amend the Pleadings before judgment was entered. Could these be two different parcels of land? There is no doubt about it. 27.These averments do not disclose any of the recognized grounds for review, and instead are factual assertions that ought to have been ventilated at the hearing. It is this court’s considered view that the present application is nothing more than an attempt to re-open the evidentiary and factual background of this matter, and to invite this Court to change course, under the guise of a review, a course that is plainly impermissible in law. 28.The Plaintiff/ Applicant’s central complaint necessitates amendment of pleadings, which cannot happen at this stage. This Court must confine itself to the narrow review grounds and not use review to reconsider the merits or determine fresh controversies. 29.In the case of Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] KEHC 7414 (KLR), Mativo J( as he then was) stated thus:[Para 45(iv)] “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.” 30.The Court has perused the judgment and decree herein, and it conforms with the prayers sought in the applicant’s pleadings. Granting the applicant’s prayers as sought might amount to changing the subject matter of the decree. 31.An eviction decree is tied to the specific land pleaded, and proved. Substituting Land Parcel No. Suswa Kitet Group Ranch 778, with Cis-mara/Suswa Kitet/988, is not just a cosmetic edit if the land is uncertain. It can alter the decree in a way that affects substantive rights and the scope of execution. This is not a clerical or accidental error. 32.Further, in the case of Karumbi v Nursing Council of Kenya (NCK) (Civil Appeal E1063 of 2025) [2026] 8617(KLR) (Civ) (18 June 2026) (Judgment), the court relied in the case of Daniel Otieno Migore v South Nyanza Sugar Company Limited (2018) eKLR, where the court held that:‘’Parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from.’’ 33.Consequently, this court cannot review its judgment and decree as the result would deviate from the Plaintiff/ Applicant’s pleadings. Even if this court was to entertain such thought, the Plaintiff/ Applicant has not adduced evidence to the effect that Land Parcel No. Suswa Kitet Group Ranch 778, and Cis-mara/Suswa Kitet/988, have the same physical location, and neither has he provided any documentary trail from the adjudication office or land registry proving the transition. 34.From the above analysis, it is evident that the prayers sought in the instant application automatically collapse, as this Court cannot order the OCS Nairage Enkare Police Station to evict the Defendant/ Respondent from Land parcel Cis-mara/Suswa Kitet/988, without ascertaining that it is similar to Land Parcel No. Suswa Kitet Group Ranch 778. The proper procedure would be to file a fresh suit and seek eviction of the Defendant/Respondent from parcel Cis-mara/Suswa Kitet/988. 35.In view of the foregoing, this Court is not persuaded that the Plaintiff/ Applicant has brought himself within the strict confines of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Who bears the costs of these proceedings? 36.It is trite law that costs follow the event, and costs are ordinarily awarded to the successful litigant. The Plaintiff/Applicant have not succeeded in his Application. However, the Defendant/ Respondent having not participated in this application, the court makes no orders as to costs. 37.Accordingly, the instant Notice of Motion application dated 3rd March 2026, is found not merited and the same is hereby dismissed entirely with no orders as to costs.It is so Ordered. DATED, SIGNED AND DELIVERED VIRTUALLY, AT NAROK THIS 9TH DAY OF JULY 2026.L. GACHERUJUDGEDelivered online in the presence ofMeyoki…..Court AssistantMr Onyango holding brief for Mr Konosi Plaintiff/ApplicantNo Appearance for the Defendant/Respondent