Achilla (Represented by Obina & another) v Aradi (Represented by Agulinda & another) (Environment and Land Case 47 of 2019) [2026] KEELC 3978 (KLR) (30 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC NO. 47 OF 2019** **THE ESTATE OF DISHON BOCKY ACHILLA** ***(Represented by*** **ERICK OBINA & AKUNAYA JANET-------------------------PLAINTIFFS** **VERSUS** **THE ESTATE OF IMBUGWA ARADI** ***(Represented by*** **JOHN AGULINDA & MUDII FANUEL ARADI--------DEFENDANTS** **AND** 1. **ROSE NAKOBA KHISA** 2. **MIRIAM NAMAROME WANJALA** 3. **JOAB LUMBASI SIMIYU** 4. **MALESI BEN MUGODO** 5. **RACHEAL INGADIMA MUDINYU** 6. **NICHOLAS METHUCELLAH WALIMOLI INTERESTED PARTIES/** 7. **ESTHER NAMACHANJA KWEYU APPLICANTS** 8. **BRIAN IMBADU** 9. **EMILY MUSIMBI SHITERO** 10. **WYLIFFE MOUNDE NYAKUNDI** 11. **MESHACK KALIOKON NAKER** 12. **VICTOR ODHIAMBO ONGWEN** 13. **ROSEMARY MAPESA LUBANGA** 14. **CONRADE MBARACK KHAGON** 15. **BENSON KAIRA GIKONO** **RULING** 1. The court is asked by an application dated **6/3/2026**, to review and or set aside the judgment delivered on **29/4/2024** in respect of **Kitale Municipality Block 17/Bidii/229**, part of **LR No. 8815**, and also to stay its execution. The grounds are set out on the face of the application and in a supporting affidavit sworn by Rose Nakoba Khisa on **6/3/2026**, on behalf of the interested parties through an authority attached as annexure **RNK-(1).** 2. The applicants depose that they learned of the existence of this suit and its decree as per the copy attached as **RNK-(2),** which had asked for the cancellation of **Title Nos. Kitale** **Municipality Block 17/Bidii/227, 230, 231,** and **228**, which had emanated from **LR No. 8815**, owned by Bidii Farm Co. Ltd. 3. The applicants depose that they had bought various portions of land arising from **Land Title No.** **Kitale Municipality Block 17/Bidii/ 229**, as per the green card attached as **RNK-(3),** from which each of them obtained resultant titles marked as **RNK-4(a)-(m)**, which risks cancellation. 4. The applicants depose that they were not parties to the suit and should therefore not be affected by the court’s judgment. The applicants depose that the plaintiff had made an application for review dated **26/6/2025**, which was allowed as per a copy attached as **RNK-(5),** to which they were also not parties. 5. The applicants depose that there was an error apparent on the face of the record where the whole of the parcel arising out of **LR No. 8815 Bidii** was supposed to be cancelled. 6. It is deposed that the applicants only learned of the said decision after the area chief summoned them after a letter to the DCC and the OCPD Kwanza was received as per attachment marked **RNK-(6).** The applicants depose that their titles were cancelled without a fair hearing, hence the reliefs sought. 7. When this matter came up on **5/5/2026**, learned counsel for the defendants, Mr. Wanyama, told the court that they were not opposed to the application, while Mr. Ndarwa, Advocate for the plaintiffs, told the court that they were willing to give the applicants consent. Parties were directed to file and exchange written submissions. 8. This court, in its judgment dated **29/4/2024**, held that the Land Disputes Tribunal proceedings adopted on **18/7/1995** were a nullity as they were against an already deceased person whose estate had not taken out letters of administration. The implications of the judgment were that title issues in respect of a nullified decree regarding **Parcel No. Kitale Municipality Block 17/Bidii 31** and **34** were a nullity, and the **LR No. 8815** was to revert to the estate of the late Robert Edward Amutabi. 9. The court also nullified any resultant subdivisions arising out of the nullified decree, over **LR No. 8815**. The court held that the transfers of **LR Nos. 221 and 223** to Imbugah Kiziri Aradi were illegal, and the estate of the deceased was to move out of the land. 10. The judgment elicited an appeal through notices of appeal dated **2/4/2024** and **25/6/2025**. It appears from the annexures attached as **RNK-4(a)-(m)** that **Parcel No. Kitale Municipality Block 17/Bidii/ 553, 560, 563, 665,539, 656, 669, 657, 1117, 665, 1076, 655, 1117, 651**, were issued on **15/9/2014, 15/10/2016, 20/6/2019, 10/1/2023, 9/10/2015, 2/9/2015, 3/10/2014, 27/4/2016, 25/8/2022, 16/8/2023, 12/9/2019**. 11. This suit was filed on **20/6/2019.** A temporary injunction stopping any dealings on **Title No. Kitale Municipality Block 17/Bidii/ 227, 228, 230,** and **231**, was issued on **25/7/2019** and **31/7/2019**. 12. From the attached copies of title deeds, it is apparent that some of them were processed contrary to the doctrine of *lis pendens*. The applicants are silent on who they bought and were transferred the land from. It is not clear if they undertook any due diligence before purchasing the land. 13. An error apparent on the face of the record must be self-evident and glaring on the face. It is not one requiring a lot of inquiry to ascertain and establish, as held in ***NBK Ltd vs Ndungu Njau Civil Appeal No. 211 of 1996*** and in ***Muyondi vs ICDC & Another [2006] 1 EA 243***. 14. The applicants have not pointed out which error on the face of the record is glaring, for the court to grant the orders sought. A nullity is a nullity as held in ***Benjamin Leonard McFoy -vs- United Africa Company Limited [1961] All ER 1169*** 15. Review is only exercisable where there is no pending appeal, under **Order 45** of the Civil Procedure Rules as read together with **Section 80** of the Civil Procedure Act. Grounds of appeal are not the same as grounds of review as held in ***Pancras T. Swai -vs- Kenya Breweries Ltd [2014] eKLR.*** 16. The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgment of the frailties of human nature, and sometimes the possibility of perversion that may lead to miscarriage of justice, as held in ***Benjoh Amalgamated Ltd & Another vs KCB Ltd [2014] eKLR***. 17. I think the applicants have failed to show any error apparent on the face of the record. They can still apply to join the pending appeals to ventilate their claim, if any, for they have not attached any draft intended defence or asked for joinder as parties to this suit. 18. The applicants are not yet parties to the suit, judgment, or decree. They have also not met the conditions of stay under **Order 42 Rule 6** of the Civil Procedure Rules. 19. I find the application lacking merit. It is dismissed with no order as to costs. 20. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **30th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis Miss Wanyonyi for applicants present Mr. Kiarie for the plaintiffs absent Mr. Wanyama for the defendants absent  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**