https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4038

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **CONSTITUTIONAL PETITION NO. 8 OF 2020** **IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 3(1) ,19(1)(2), 21(1), 28, 29, 40 AND 43 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF NATIONAL LAND COMMISSION ACT, 2012 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS** **AND** **FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULE) RULES 1, 2, 3, 4, 10, 11, 20, 21, 33 AND IN THE MATTER OF SECTIONS 18, 37, 38 & 43 LIMITATIONS OF ACTIONS ACT** **AND** **IN THE MATTER OF ORDER 37 RULE 7 CIVIL PROCEDURE RULES AND IN THE MATTER OF ABUSE, THREAT TO ABUSE AND INFRINGMENT OF THE PETITIONERS’ HUMAN AND FUNDAMENTAL CONSTITUTIONAL RIGHTS** **AND** **IN THE MATTER OF A PORTION OF TITLE NO. KPLOMBE/KIPLOOMBE, BLOCK II (FORMERLY KNOWN AS LR. NO. 9723 (LR. 15449) SERGIT RIVER FARM** **BETWEEN** **ERICK KIBIWOTT TARUS** ………………………………. **1ST PETITIONER** **LUDIA SAMOEI** …………………………………………….. **2ND PETITIONER** **KELMAS INVESTMENT LIMITED** …………………….. **3RD PETITIONER** **JAPHATE KIPKEMBOI MAGUT** ……………………….. **4TH PETITIONER** **EZEKIEL RONO** ……………………………………………. **5TH PETITIONER** **SERGOIT RIVER CATTLE DIP** …………………………. **6TH PETITIONER** **REGISTERED TRUSTEES, AIC CHURCH** …………… **7TH PETITIONER** **THE BOARD SERGOIT RIVER FARM SCHOOL** ……. **8TH PETITIONER** **PAULIMA CHUMA** …………………………………………. **9TH PETITIONER** **ELIJAH CHEMAIYO** …………………………………….. **10TH PETITIONER** **LILIAN JERUTO KITUR** ………………………………... **11TH PETITIONER** **STANLEY KIPTOO METOO** …………………………… **12TH PETITIONER** **WILFRED KIMALAT** …………………………………….. **13TH PETITIONER** **QUANDS ACHIM** …………………………………………. **14TH PETITIONER** **JOSHUA KIPROTICH MAGUT** ……………………….. **15TH PETITIONER** **ROSA JERUBET BIWOT** ……………………………….. **16TH PETITIONER** **JEPLETING MITEI** ………………………………………. **17TH PETITIONER** **JOAN BERNARD SICARD** ……………………………… **18TH PETITIONER** **GRACE NTINI SICARD** …………………………………. **19TH PETITIONER** **SAMWEL KIPRONO SAMOEI** …………………………. **20TH PETITIONER** **PAUL KIPSANG MENGECH** ……………………………. **21ST PETITIONER** **EDWARD KIPLAGAT SOI** ……………………………… **22ND PETITIONER** **MARTHA ONYANGORE** ………………………………… **23RD PETITIONER** **BERNATE ANYONGO** …………………………………… **24TH PETITIONER** **MARY NEKESA SOGHO** ……………………………….. **25TH PETITIONER** **AUGUSTINE LELIT** ……………………………………… **26TH PETITIONER** **NORBART MAINGI MUYA** ……………………………... **27TH PETITIONER** **MONICA JERUTO RUTO** ………………………………. **28TH PETITIONER** **NICHOLUS ROP KIPKEMBOI** ………………………… **29TH PETITIONER** **NELSON KIPRONO ORGUT** …………………………… **30TH PETITIONER** **BENJAMIN KUTO** ………………………………………… **31ST PETITIONER** **LINUS CHERUIYOT** ……………………………………... **32ND PETITIONER** **PAUL KIPKORIR SUM** ………………………………….. **33RD PETITIONER** **KIMUTWAL CHERUIYOT** ……………………………… **34TH PETITIONER** **JOSEPH KOMEN** ………………………………………… **35TH PETITIONER** **SISUMA INVESTMENT** …………………………………. **36TH PETITIONER** **BRI ROP** ……………………………………………………. **37TH PETITIONER** **DAVID KIMUREI MENGICH** …………………………... **38TH PETITIONER** **JOSEPH KIBET ROTICH** ………………………………. **39TH PETITIONER** **PERES JEMELI KOIMUR** ……………………………… **40TH PETITIONER** **FRANCIS OSANO OMWENGA** …………………………. **41ST PETITIONER** **DANIEL KOMEN** …………………………………………. **42ND PETITIONER** **JOSHUA KIPLETING SULAI** ………………………….. **43RD PETITIONER** **JOHN KIPKEMBOI KOECH** …………………………… **44TH PETITIONER** **PROF GABRIEL MISANGO ANABWANI** …………….. **45TH PETITIONER** **DAVID KIPTALAM BETT** ………………………………. **46TH PETITIONER** **MARY OLOO SLA** ………………………………………… **47TH PETITIONER** **DR SILVANO KIPYEGO ROTICH** …………………….. **48TH PETITIONER** **EVERLINE JEPKEMBOI KEINO** ……………………… **49TH PETITIONER** **BARABARA LAGAI** ………………………………………. **50TH PETITIONER** **PROF MARTIM HENRY KIMUREI** …………………… **51ST PETITIONER** **WILSON CHUMA** …………………………………………. **52ND PETITIONER** **AND** **THE ATTORNEY GENERAL** …………………………… **1ST RESPONDENT** **NATIONAL LAND COMMISSION** …………………….. **2ND RESPONDENT** **CHIEF LAND REGISTRAR** …………………………….. **3RD RESPONDENT** **ESTATE OF ESMAIL NURANI** ………………………… **4TH RESPONDENT** **ESTATE OF NYONGIO KIMITEI** ……………………… **5TH RESPONDENT** **AND** **ZADRACK KEBENEI** …………………………… **1ST INTERESTED PARTY** **JAPHETH KIPKEMBOI MAGUT** …………….. **2ND INTERESTED PARTY** **WILFRED KIPTUM KIRU** …………………….. **3RD INTERESTED PARTY** **GRACE M SICARD** ……………………………… **4TH INTERESTED PARTY** **NERBERT MAINGI MUYA** ……………………. **5TH INTERESTED PARTY** **BENSON KIPCHUMBA CHERONO** …………. **6TH INTERESTED PARTY** **MARGARET JEMISTO TUITOEK** …………... **7TH INTERESTED PARTY** **JUDITH CHEBET KEMBOI** …………………... **8TH INTERESTED PARTY** **LILIAN JERUTO KITTUR** …………………….. **9TH INTERESTED PARTY** **ELIJAH CHEMAIYO** ………………………….. **10TH INTERESTED PARTY** **WILFRED KIMALAT KITUR** ……………….. **11TH INTERESTED PARTY** **MARTHA ONYANGORE** ……………………... **12TH INTERESTED PARTY** **JOAN JEPKORIR KOMEN** ………………….. **13TH INTERESTED PARTY** **BENJAMIN KUTO** …………………………….. **14TH INTERESTED PARTY** **NELSON ORGUT** ………………………………. **15TH INTERESTED PARTY** **BOARD OF MANAGEMENT AIC** **ITIGO PRIMARY SCHOOL** ………………….. **16TH INTERESTED PARTY** **BOARD OF MANAGEMENT AIC** **ITIGO SECONDARY SCHOOL** ……………… **17TH INTERESTED PARTY** **SALLY JEPKEMBOI LABOSO** …………….. **18TH INTERESTED PARTY** **MUSA KIPKOSGEI** ……………………………. **19TH INTERESTED PARTY** **FAITH JEROP MENGICH** …………………… **20TH INTERESTED PARTY** **FELIX KIPTOO MUREY** ……………………… **21ST INTERESTED PARTY** **GLADYS JEPNG’ETICH** …………………….. **22ND INTERESTED PARTY** **BARNABAS KIBET BIWOTT** ……………….. **23RD INTERESTED PARTY** **JOEL MWORIA NGANGA** ……………………. **24TH INTERESTED PARTY** **MICHAEL K. KOLELE** ……………………….. **25TH INTERESTED PARTY** **JONES KIPKOECH** …………………………… **26TH INTERESTED PARTY** **EDWIN KIPRUTO KIPRONO** ……………….. **27TH INTERESTED PARTY** **JEMUTAI JOYCE SILA** ………………………. **28TH INTERESTED PARTY** **SILAS KIPLAGAT** …………………………….. **29TH INTERESTED PARTY** **RULING:** 1. This ruling is with respect to the 17th - 28th Interested Parties/Applicants’ Notice of Motion application dated 5th November, 2025 through which they seek the following orders:- 2. Spent 3. The Judgment dated 26th February, 2025 be reviewed, varied and set aside in its entirety. 4. Upon such setting aside, the matter be heard de novo, with the participation of all parties including the 17th - 28th Interested Parties/Applicants now on record. 5. The costs of this application do abide the outcome of the Petition or as the Court may otherwise direct. 6. The application is supported by the grounds set out in the Motion as well as those in the Supporting Affidavit sworn by Sally Jepkemboi Laboso on 5th November, 2025. In summary, the Applicants’ case is that the judgment of the court delivered on 26th February, 2025 dismissing the Petition was rendered in fundamental breach of their right to fair hearing. They claim that they have a direct and substantial stake in L.R. No. 9723 (IR No. 15449), currently reflected in parcel no. Kiplombe/Kiplombe/Block 11(Sergoit River Farm), measuring 854 Acres, the suit property. That however, they were neither notified nor given an opportunity to participate in the proceedings by filing pleadings or presenting evidence in support of their claim. That they were thus condemned unheard contrary to provisions of the constitution. 7. The Applicants deponed that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules allow the court to review orders on the grounds set out thereunder. They add that there has been discovery of new and important matter/evidence that was not within the court’s knowledge at the time of judgment, which in essence, is that the Applicants have legitimate claims and interests over the suit property. They allege that the presence of additional parties is an important fact that may have influenced the decision of the court had it known. That it is therefore important that the judgment is set aside so that the new evidence regarding their claims can be evaluated, and a determination made on merit with all the parties’ evidence. 8. The Applicants also aver that the original 5th Respondent died prior to the judgment, and was not substituted in good time contrary to Order 24 of the Civil Procedure Rules. That the 5th Respondent’s suit having abated, the allocation of the land to his estate in absence of substitution constitutes an error on the face of the record, as well as a procedural irregularity that can be discerned without probing the record. They deponed that it is necessary for the court to correct the said error by way of review, rather than subjecting the parties to an appeal. In addition, the Applicants faulted the judgment for allocating the 5th Respondent property without any cross-petition or prayers to that effect. 9. The Applicants aver that the judgment violated the Applicants’ rights under Articles 25(c) and 50(1) of the Constitution of Kenya as they were not afforded an opportunity to be heard, which in itself is sufficient reason to warrant review. That in order to uphold the integrity of the judicial process and the right to fair hearing, the court should set aside the judgment and hear the matter afresh with their participation. It was further deponed that the judgment delivered on 26th February, 2025 was made in breach of the rules of natural justice, and is thus void ab initio. The Applicants averred that they only sought review and not to reopen factual issues. They deponed that the application is merited and was made in good faith, and therefore they asked the court to allow the application and grant the orders sought. 10. The Notice of Motion was served on the parties herein. When the matter came up for directions on 1st March, 2026 as well as on 27th April, 2026, Counsel for the 1st - 52nd Petitioners informed the court that they were not opposed to the Application. 11. The 5th Respondent, however, opposed the application by filing Grounds of Opposition dated 28th November, 2025 and 10th December, 2025 which are similar in content. According to the 5th Respondent, the court pronounced itself on the issue of review in its ruling made on 18th September, 2025. That the Petitioners had lodged an appeal and had vide the ruling delivered on 18th September, 2025 obtained an order of stay pending determination thereof. That having delivered its judgment and the aforesaid ruling, this court is thus functus officio, and lacks jurisdiction to review or vary the judgment herein. 12. The 5th Respondent avers that the review mechanism under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules is not a mechanism to challenge a judge’s reasoning on the exercise of discretion, unless it is based on the grounds set out in the said law. It is the 5th Respondent’s case that an interested party is not a party to the proceedings or one that is directly involved in the litigation. That the Applicants herein being interested parties were not parties to the proceedings. Further, that they cannot, therefore, purport to have discovered new and important matter or evidence not available at the time of the decree, and cannot benefit from the said ground of review. 13. The 5th Respondent further averred that under Order 45 of the Civil Procedure Rules, review cannot be granted where appeal has been preferred, and pointed out that in this instant case, there is a pending appeal filed by the Petitioners. The 5th Respondent claims that the grounds advanced by the Applicants herein are common to the Petitioners’ grounds of appeal, thus the Applicants herein ought to have instead sought leave from the Court of Appeal to be joined to the intended appeal. The 5th Respondent states therefore that the Applicants should present their claims to the Appellate court where they are at liberty to apply for review and not to set aside the judgment. The 5th Respondent thus asked that the application be dismissed with costs. **Submissions:** 1. The court directed that the present application be canvassed by way of written submissions. The Applicants complied and filed their written submissions dated 27th February, 2026. The 5th Respondent also complied and filed submissions dated 5th March, 2026. 2. The Honourable Attorney General, appearing for the 1st - 3rd Respondents and the 15th & 16th Interested Parties indicated intention to file submissions to the application. They were given sufficient time to do so but did not comply. On 27th April, 2026 the Attorney General was granted 7 more days to file submissions, but once more, did not comply. *The Applicants’ Submissions;* 1. Counsel for the Applicants submitted that pursuant to Section 80 of the Civil Procedure Act, the Applicants are entitled to seek review as persons aggrieved by the judgment of this court, since their proprietary rights in the suit property had been affected by it. Counsel argued that the Applicants’ joinder to the proceedings demonstrated their substantial stake in the suit property and affirmed their *locus* *standi*. She further contended that the judgment was rendered without affording the applicants an opportunity to be heard, contrary to their constitutional right to fair hearing, right to property and access to justice under Articles 22, 25, 40 and 258 of the Constitution. 2. Accordingly, Counsel maintained that the Applicants have the requisite standing and the violation of their said rights constitutes sufficient grounds for review. Counsel cited ***Kenya Orient Insurance Company Limited vs Otieno (2024)***, ***Law Society of Kenya vs Supreme Court of Kenya & Another; Abdullahi SC & 19 Others (Interested Parties)***, ***Petition E026 of 2024***, ***Nairobi City Council Assembly & Another (2025) KEHC 5656 (KLR)***, ***National Museums of Kenya vs Kikwetu Village Hotel Ltd & 3 Others, Court of Appeal Civil Appeal No. (2024) KECA 729 KLR***, ***Muliango & 2 Others vs Andai Environmental, Land Appeal No. E039 of 2025 (2025) KEELC 5129 (KLR)*** and ***Mbogo vs Karani, Civil Appeal E049 of 2025 (2025) KEHC 6270 (KLR)***. 3. As regards the issue of unreasonable delay, Counsel submitted that judgment was delivered on 26th February, 2025 and the Applicants were joined to the suit on 18th September, 2025. That thereafter, the Applicants filed the present application on 15th October, 2025. Counsel maintains, therefore, that the application was made without unreasonable delay. Counsel relied on ***Bank of Africa Limited vs Mits Electrical Co. Ltd & 2 Others*** and ***Ismail & Another vs Otwala (Civil Appeal E067 of 2022)***. 4. Counsel further reiterated that the joinder of the Applicants and their proprietary stakes in the suit land constitutes new and important matter or evidence under Section 80 and Order 45 Rule 1. That the judicial acknowledgement of their stake in the ruling dated 18th September, 2025 is a material fact that could have influenced the outcome had it been available at the time of judgment. Counsel cited the case of ***Macharia vs Principal Secretary, Ministry of Education & Another*** and ***David & 2 Others vs Bakaya***. 5. Counsel further submitted that the judgment was tainted by errors apparent on the face of the record. Under this head, Counsel claimed that the Court allocated land to the 5th Respondent’s estate yet there was no cross-petition, counterclaim or specific prayer to that effect. Counsel also pointed to the continuation and determination of the suit against the 5th Respondent despite abatement under Order 24 without substitution. Counsel argued that these are flaws that emerge from a plain reading of the pleadings, record and judgment and do not call for elaborate argument or re-appraisal of evidence. Counsel additionally cited the cases of ***Muyodi vs Industrial and Commercial Development Corporation & Another*** and ***Otieno, Ragot & Co. Advocates vs National Bank of Kenya Limited*** in support of her arguments. 6. In addition, Counsel submitted that the denial of a hearing to the Applicants herein is contrary to Articles 25(c) and 50(1) of the Constitution, and amounts to sufficient reason for review of Order 45 Rule 1 of the Civil Procedure Rules. In support of her arguments, Counsel cited ***Hosea Nyandika Mosagwe & 2 Others vs County Government of Kisii & Another***. Counsel further contended that the matters raised in the present motion are for review, and do not require the court to sit on appeal of its own decision. Counsel argued that review is allowed to correct procedural or fundamental errors and uphold justice. Counsel asked the court to allow the application and grant the orders sought, as well as an order preserving the status quo so that the fresh hearing is not rendered nugatory. *The 5th Respondent’s Submissions;* 1. In opposing the present Motion, Counsel for the 5th Respondent submitted that the role of an interested party once judgment has been delivered is limited, unlike that of the principal parties. Counsel submitted that an interested party cannot re-open a case after judgment or seek new reliefs that were not part of the original determination, and he cited ***Trusted Society of Human Rights vs Mumo Matemu (2016)***. Counsel also cited ***Republic vs Advocates Disciplinary Tribunal ex-parte Apollo Mboya (2019) eKLR*** as regards the principles to be considered in an application for review. 2. Counsel argued that the Applicants herein cannot invoke review on discovery of new and important matter or evidence when they did not participate in the initial Petition. Counsel urged that on error apparent on the record, the Applicants cannot disagree with the court’s reasoning, constitutional interpretation or argue that the court failed to consider their allegations. Counsel further argued that the Supreme Court in ***Muruatetu (2021)***, cautioned courts against endless post-judgment applications. 3. Counsel pointed out that the Applicants had purchased land from agents and brokers who had no authority to sale the land, without first ascertaining their ostensible authority from the registered owners. That pursuant to the nemo dat and caveat emptor doctrines, the Applicants could not purport to hold a legitimate stake or interest in the land. Counsel claimed that most of the Applicants are hiding behind the Petitioners herein as they either live with them or purchased their portions from them. That they cannot therefore feign ignorance of this long-standing suit. 4. Counsel further submitted that under the functus officio doctrine, once a court has delivered its final judgment, it has no authority to revisit, reopen or alter that decision. Counsel asserts that the Supreme Court in ***Raila Odinga & Others vs IEBC & Others (2013)*** underscored the finality in judgment and that a court cannot sit on appeal over its own decision. Counsel further cited ***Telkom Kenya Ltd vs John Ochanda (2014)*** on the instances where a court may re-visit its decision without re-opening the case. Counsel urged that the Court pronounced itself on the issue of review in its ruling of 18th September, 2025. Counsel thus asked that the application be dismissed with costs. **Analysis and Determination:** 1. I have considered the present Application, the Affidavits and annexures filed in support thereof, the Responses thereto as well as the submissions of the parties. I am convinced that the issues arising for determination by this court are:- 2. *Whether Judgment dated 26th February, 2025 be reviewed, varied and set aside in its entirety;* 3. *Who should bear the costs of the application?* 4. Before delving into the merits of the application, I do feel the need to set the record straight that prior to joinder of the Applicants herein, there were 17 Interested Parties in this Petition already. Therefore, to be clear, upon the Applicants’ joinder, they can only be joined as the 18th - 29th Interested Parties. 5. **Whether Judgment dated 26th February, 2025 be reviewed, varied and set aside in its entirety** 6. The first prayer in the present application is for an order of review, varying and setting aside of the judgment delivered in this suit on 26th February, 2025. The substantive law on review is to be found at Section 80 of the Civil procedure Act, which provides that:- ***80. Review*** ***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.*** 1. When it comes to the procedure applicable to an application for review, Courts are guided by Order 45 of the Civil procedure Rules. Order 45 Rule 1 specifically provides as follows: ***1. Application for review of decree or order [Order 45, rule 1]*** ***(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.*** 1. A clear reading of Order 45 Rule 1 lays down the jurisdiction and scope of review by restricting the grounds for review to the following grounds:- 2. *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;* 3. *on account of some mistake or error apparent on the face of the record, or* 4. *for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.* 5. However, Order 45 Rule 1 is clear that a party cannot apply for review where an appeal has been preferred against the impugned judgment. Rule 2 thereof provides that:- ***(2) 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.*** 1. While this court cannot speak as to the progress of the said appeal, Order 42 Rule 6(4) of the Civil Procedure Act/Rules recognises that an appeal to the Court of Appeal is deemed to have been duly filed once a Notice of Appeal has been given. By virtue of that provision, there is a pending appeal filed by the Petitioners herein as evidenced by Notice of Appeal dated 3rd March, 2025 and endorsed by the Deputy Registrar of this Court on 7th March, 2025. 2. By virtue of the existence of the said appeal, the Applicants are precluded under Order 45 Rule 1 from seeking for review against the judgment of this court through the present application. This was discussed in ***Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Limited & 2 Others (2020) eKLR***, where the Court of Appeal held as follows:- **“It is now an accepted view that both the Civil Procedure Rules and the Court of Appeal Rules did not contemplate the simultaneous proceedings of review and appeal before two different courts at the same time. Where a party has filed an appeal but subsequently wishes to apply to the court from which the appeal came to review the decision impugned, that party must, in the first place withdraw the appeal.”** 1. That aside, the appeal lodged by the Petitioners relates to the issue of ownership of the suit property, which is similar to what the Applicants are claiming in this application. For this reason, going by Order 45 Rule 2, the Applicants ought to indeed have lodged their application before the Court of Appeal and not this court. 2. The above notwithstanding, the court has applied its mind into determining this application on merit and whether the Applicants have met all the conditions necessary to grant an order of review. 3. ***Whether there is any new and important matter or evidence*** 4. The first ground relied on by the Applicants in support of their application for review is that there has been a discovery of new and important matter or evidence. Under this ground, the Applicants claim that the presence of additional parties who claim lawful occupancy or ownership of portions of the land is an important fact that `could have influenced the court’s decision had it been known. 5. However, the law is clear that the purported new and important evidence or matter should have been in existence at the time of the trial and or judgment, only that it was unknown to the party and was not available to them, and to the court even after the exercise of due diligence. In ***Republic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya (2019) KEHC 6379 (KLR)***, the court underscored that:- **“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.”** 1. In addition, a court is under a duty to only accept this ground upon sufficient proof that it could not be obtained at the time the decree was passed. This is reiterated at the proviso to Order 45 Rule 3(2), which is to the effect that:- ***Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.*** 1. It goes without saying therefore, that this ground can only be relied on by a party who was a party to the suit at the time of trial and making of the judgment or order. The Applicants herein, not having been parties to the main suit at the time of judgment, cannot claim that they have discovered new evidence after judgment was entered. That aside, the mere existence of more parties claiming ownership or interests in the suit property, cannot in and of itself influence the decision of a court. 2. Moreover, the Applicants claim to be in possession of the various portions on the suit property, which they claim to have purchased. This court further notes that the Applicants claim to be living on the land, and that they were in occupation thereof at the time of entry of judgment. For this reason, in their application for joinder that was determined on 18th September, 2025, they claimed that they were at risk of being evicted therefrom. 3. If that is true, then the knowledge of the existence of other parties, being the Applicants herein, cannot be said to have been new and important matter or evidence that could not be obtained at the time the decree was passed. The fact of their occupation on the land must be such open knowledge to the Petitioners herein, and could at any time have been brought to the knowledge of this court before judgment was delivered. 4. In further support of their argument that their joinder and alleged interests in the suit property constitutes new evidence, the Applicants insist that their joinder to the suit is a judicial acknowledgment of their stake in the suit land. However, at paragraph 47 of the ruling delivered on 18th September, 2025 this court found that:- ***“Evidently, in the instant Petition, the Petitioners claimed to have acquired interests over the suit property by way of effluxion of time, and that the Respondents or anybody claiming under them have had their rights extinguished by prescription. The Proposed Interested Parties on the other hand claim to have purchased their respective portions of land, and have annexed copies of Agreements for sale as proof thereof. Whereas it may be said that this raises a whole new cause of action different from that which was advanced by the Petitioners in the Amended Petition, and which it could be properly addressed through a separate suit, I have seen the purported Notice of Eviction dated 28th February, 2025 issued on behalf of the 5th Respondent, giving notice to the Interested Parties to vacate the land within 14 days or be evicted. There is no doubt that the said notice, if acted upon, will adversely affect the Proposed Interested Parties, yet they were not parties to this suit and neither were they given an opportunity to present their case.”*** 1. This cannot be said to have been a judicial recognition or acknowledgment that the Applicants held any certain or definitive rights over the suit land. It was only meant to give them a platform to react and protect themselves against the eviction that had been commenced by the estate of the 5th Respondent. It does not in any way grant the Applicants standing to seek to assert any interests they claim to have acquired, noting also that the present suit did not arise from or support their various causes of action as pleaded in their applications filed herein, neither was it meant to clothe them with jurisdiction to seek review of the judgment. 2. In any event, the Court expressly stated that since the Applicants are claiming to have acquired their interests in their portions of the suit property through purchase, they were raising an entirely different cause of action different from that raised by the Petitioners herein. It was the court’s view therefore, that the matters raised by the Applicants are more suited to be addressed through a fresh suit. The Court has not changed its view on this. 3. As earlier explained, and which I feel necessary to reiterate, the ground of new and important matter or evidence envisaged at Order 45 Rule 1, must have already been in existence at the time of the judgment, but could not have been obtained even on exercise of due diligence. Such a classification cannot therefore include such matter or circumstance that the Applicants had themselves engineered and later sought to gain an advantage from in the suit. Indeed the joinder of the Applicants to this suit, while it is a recent development, only came about due to the joinder allowed on 18th September, 2025. The Applicants herein having engineered their own joinder into this suit by application to this court, cannot turn around and rely on it to seek review of the judgment. 4. Owing to this, I am convinced that the Applicants herein seek to raise a completely different suit under the guise of discovery of new matter or evidence through this application for review. This to me is not only unprocedural, but impermissible and prejudicial. For this reason, the court is convinced that there is no discovery of any new or important evidence by the Applicants herein. 5. ***Whether there is any error apparent on the face of the record*** 6. The Applicants herein have also claimed that there is an error apparent on the face of the record, which error warrants a review of the judgment of this court. A ‘mistake or error apparent on the face of record’ has been held to be an evident error that does not require extraneous matter or evidence to prove. It ought to be an error so manifest and clear that no court would permit it to remain on the record. It may be an error of law, but the law must be definite and capable of ascertainment. See ***Republic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya (Supra)***. 7. In ***Nyamogo & Nyamogo vs Kogo (2001) EA 170***, the court discussed what constitutes an error on the face of the record, and rendered itself as follows:- **“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”** 1. In support of this ground, the Applicants claim that the court erroneously allocated land to the 5th Respondent despite them not filing any counterclaim or expressly asking for such a relief in their pleadings. In the ruling delivered by this court on 18th September, 2025 the court conclusively dealt with the issue of entitlement by the 5th Respondent to the land as follows:- **“13. However, while giving a background of the case, the Trial Judge at paragraph 3-5 of the judgment noted that:-** ***‘3. There is no clear record on how and when the land was transferred to Nyongio Kimitei and Diamondali Nurani. This is because the original title was lost from the Lands Registry. According to the materials filed by the parties in this petition, the petitioners and the Respondents are giving backgrounds which only suit their positions. It is therefore not easy to trace the history between the time the land was transferred from Donald James Gear to the time when the Moiben Divisional Land Control Board at its meeting of 13th March, 1985 approved subdivision of the land. During this meeting, the Board approved a proposal to partition the land into 477 and 377 acres in favour of Bahadurali Nurani and Nyongio Kimitei. The approval was made under minute number 73/85.*** ***4. Under minute number 74/85 a proposal by Mr. Bahadurali Nurani to sell 377 acres to the Government of Kenya at a consideration of Kshs.1,696,500/= was approved. Under minute 75/85 a proposal by Mr. Bahadurali to sell 80 acres to Eric Tarus at a consideration of Kshs.180,400/= was approved. In the same meeting a proposal by Mr. Bahadurali to transfer 20 acres to the Government of Kenya by way of gift was approved.*** ***5. On 25th July, 1985, the Provincial State Counsel Rift Valley Province wrote to the District Land Registrar Uasin Gishu District asking him to cause subdivision of the 377 acres and give the same to the landless. The 377 acres were subdivided into blocks of 5 acres each and these are the plots which the Petitioners claim were given to them.’*** **59. Going by the above summary and evidence produced before the trial court, the court stated that the remaining registered owner of the land was the Estate of Nyongio Kimitei. The learned trial Judge did not err in pointing out that the 5th Respondent was the registered owner, because in truth he is, and will remain to be even without the court making any observation to that effect.** **60. For the avoidance of doubt, the trial Judge did not make a declaration on the ownership as alleged, but simply made an observation on a fact that can be discerned from the title. Whether the late Nyongio Kimitei remained the sole owner of the land, or remained a tenant in common of the land alongside the Estate of Esmail Nurani, he was still an owner of the land per the title.”** 1. It is therefore incorrect and misleading for the Applicants herein to claim that the court in its judgment had allocated the suit property to the 5th Respondent’s estate. It goes without saying that this court has no authority or power under the law to allocate land to any individual or person. 2. Be that as it may, the fact of ownership of the suit land by the 5th Respondent is one that did not need this court’s determination and or affirmation, as it was discerned by the court from the materials placed before it. The death of the original 5th Respondent and the failure to substitute him as by law required could never erase what the title to the land or ownership records reflect. In essence therefore, the same would not change due to the abatement of the 5th Respondent’s suit. 3. In any case, Order 24 Rule 1 provides that the death of a party shall not cause the suit to abate if the cause of action survives or continues. In addition, under Order 24 Rule 4(3), where no application for substitution is made within one year, the suit abates only as against the deceased defendant. Therefore, the failure to substitute the 5th Respondent could only result in the abatement of the suit only against the 5th Respondent and did not affect the standing of the other parties/Respondents. 4. As already explained in the ruling of 18th September, 2025, the Learned Judge only pointed to a fact that could be ascertained from the facts and evidence placed before him. No land was allocated to the 5th Respondent by this court that did not already belong to him and that on the unfortunate event of his death, was vested in his estate. This therefore means that the application for review on this ground of error apparent on the face of the record cannot succeed. 5. ***Whether there is sufficient reason to order a review*** 6. Finally, the Applicants claimed that there is sufficient reason to allow for the review of the judgment. In advancing this ground, the Applicants claim that they were never notified of the Petition, therefore they were not afforded an opportunity to participate in the proceedings. They claim that this amounts to a contravention of their right to a fair hearing, the right to property and the right to access justice under Articles 22, 25, 40 50 and 258 of the Constitution. According to the Applicants, this constitutional violation constitutes sufficient reason to review the judgment, since it affected their rights over the land yet they had no opportunity to defend their interests. 7. It is not in dispute that the Applicants herein were not party to the proceedings herein during trial and at the delivery of judgment. But once again, the Applicants have taken to misleading this court on the effect of the judgment delivered on 26th February, 2025. This is because the Court in its said judgment found that the Petition was not merited and proceeded to dismiss it. 8. A dismissal order has been held on numerous occasion to be a negative order as it does not impose any positive obligations on any of the parties capable of execution. But more than that, a dismissal order leaves the party in the position they were in before the case was filed, as was affirmed in ***Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 others (2016) KEHC 8610 (KLR)***, where the court explained as follows:- **“17. The same reasoning was applied in the case of *Raymond M Omboga vs Austine Pyan Maranga (supra)*, that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:-** ***‘The order dismissing the application is in the nature of a negative order and is incapable of execution… This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise…’.”*** 1. In essence therefore, the judgment of 26th February, 2025 left both the Petitioners herein and the Applicants in the same position they were in prior to the institution and determination of the case. Consequently, the Applicants cannot contend that the judgment adversely affected their rights over the suit property on the basis that they were not heard, since the judgment did not alter or determine any rights in respect of the suit property. 2. Furthermore, the Petitioners in this suit claimed to have acquired interests over the suit property by way of effluxion of time, and that the Respondents or anybody claiming under them have had their rights extinguished by prescription. The Applicants on the other hand claim to have purchased their respective portions of land, and even annexed to their application for joinder copies of Agreements for Sale as proof thereof. As earlier stated, the Applicants herein are raising an entirely different cause of action that cannot be addressed alongside the Petitioner’s claim. 3. For the foregoing reasons, I am not persuaded that non-inclusion of the Applicants in this suit amounts to “sufficient reason” within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. The present suit concerns a cause of action that is wholly different and distinct from that raised by the Applicants herein. Furthermore, no orders were issued by the Court that were capable of affecting the Applicants’ existing interests in any manner, way, or form. 4. Courts have repeatedly held that an application for review will only be allowed on very strong grounds, particularly if its effect will amount to re-opening the application or case a fresh. Order 45 Rule 3(1) requires that:- ***Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.*** 1. In the circumstances, I am persuaded that granting the review would have the effect of reopening the case without any justifiable basis for doing so. Moreover, the application is tantamount to asking the court to sit on appeal on a decision of a court of concurrent jurisdiction, something I cannot do. Consequently, this Court finds that the Applicants have failed to satisfy the threshold for the grant of an order of review. Accordingly, the Applicants’ application is devoid of merit and is hereby dismissed. 2. **Who should bear the costs of the application?** 3. The last issue for determination is with respect to the costs of this application. On costs, Section 27 of the Civil procedure Act provides that:- ***27.Costs(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. A plain reading of the foregoing provision makes it clear that the Court retains the discretion to determine whether or not to award the costs of a suit. As a general rule, however, costs follow the event and are awarded to the successful party in litigation, unless the Court, for good and justifiable reason, orders otherwise. 2. In the present case, the Applicants, having instituted the application herein, have failed in their endeavour. The 5th Respondent was the only party that responded to and actively participated in the application and has successfully opposed the same. I find no justifiable reason to deprive the 5th Respondent of an award of costs. Accordingly, the 5th Respondent shall have the costs of the application. **Orders:-** 1. The upshot of the foregoing is that the 18th to 29th Interested Parties’ Application dated 5th November, 2025 is devoid of merit. Consequently, the said application is hereby dismissed with costs to the 5th Respondent only. 2. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **2ND** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the presence of:- Ms. Rotich holding brief for Ms. Chesoo for 17th -28th Interested Parties. Mr. Ngigi for 2nd -52nd Petitioners. No appearance for the 1st Petitioner. No appearance for the Respondents. No appearance for 1st - 16th Interested parties. Court Assistant - Laban.