https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3666

National Land Commission v Muriithi (Suing as the Administrators of the Estate of Stephen Mwangi Muriithi (Deceased)) (Environment and Land Appeal E24 of 2025) [2026] KEELC 3666 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEELC 3666 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E24 of 2025 MN Kullow, J June 15, 2026 Between The National Land Commission Appellant and Gitonga Mwangi Muriithi (Suing as the Administrators of the Estate of Stephen Mwangi Muriithi (Deceased)) Respondent (Being an appeal against the ruling and orders of Honourable Tribunal Chair Dr. Nabil M. Orina and George Supeya delivered on the 22nd October 2025 at the Land acquisition tribunal at Nairobi) Ruling Introduction 1.The matter is coming up for determination of the Claimant’s Notice of Motion application dated 21st November 2025 seeking the following ordersa.Spentb.That the appellant’s Memorandum of Appeal dated 28th October 2025 and the record of appeal dated 19th November 2025 be struck outc.Costs be awarded to the Claimant/1st Respondent 2.The application was premised on grounds as in the supporting affidavit sworn by Gitonga Mwangi Muriithi where he deponed that as per the land Act, an appeal to this court could only emanate from the judgment of a tribunal and not a ruling. 3.That the appellant had failed to file an appeal as against the judgement delivered on 22nd April 2025 delivered by the tribunal and sought instead to seek for review of judgement which was heard and a ruling delivered on the 22nd October 2025 which ruling, he seeks to appeal and hence not tenable hence the orders to strike off the appeal 4.The Appellants/Respondents responded in a replying affidavit sworn by Brian Ikol dated 28th January 2026.He deponed that aggrieved by the judgement of the tribunal the respondent filed for review vide the application dated 19th August 2025 as a matter of 1st instance which was determined by the ruling dated 22nd October 2025 which is the subject of this appeal. Counsel argues that the application for review raised valid grounds hence filing of the instant appeal. 5.The court directed for the application to be canvassed by way of written submissions with the applicant filing submissions dated 2nd February 2026 whereas the respondent submitted by filing submissions dated 11th March 2026. Applicant/Claimant’s submissions 6.Counsel submitted reiterating the contents of its application being there was no automatic right of appeal against a ruling but only on an appeal relying on Section 133A,133C(7) and 133D of the Land Act.That the appellant sought to appeal the judgment that had not been appealed as a matter of first instance in the tribunal. He relied on the decision in Thika ELC Petition No E010 of 2021 (Giciri Thuo 7 Others Vs National Land Commission and Others) Appellant’s /Respondent’s submissions 7.The Respondent in rebuttal to the argument raised by the applicant, submitted that the Applicant sought to have the court determine on the merits of the appeal at an interlocutory stage by arguing that only judgements of the tribunal could be appealed and not rulings. That the ruling seeking to be appealed affected the rights of parties and is a decision capable of review.Counsel relied in the case of Equity Bank Limited Vs West Link MBO Limited. Analysis and determination 8.Having considered the application, the replying affidavit and the submissions filed I find that the issues for determination are whetheri.Whether the appeal is rightfully before this courtii.Whether the appeal is an abuse of the court process 9.I have perused the memorandum of appeal and do note that the appellants do raise issues of facts that were pleaded in the application for review dated 19th August 2025. The said application was heard and determined via the impugned ruling. It seems like the applicant is seeking to appeal against the judgement dated 22nd April 2025, after their review application was declined through the ruling of 22nd October 2025, by the tribunal.The respondent has argued this indicating the appeal is not a competent one as it does not fall under what is intended by Section 133D of the Land Act which section reads;133D1.A party to an application to the Tribunal who is dissatisfied with the decision of the Tribunal may, in the prescribed time and manner, appeal to the court on any of the following grounds—a.the decision of the Tribunal was contrary to law or to some usage having the force of law;b.the Tribunal failed to determine some material issue of law or usage having the force of law; orc.a substantial error or defect in the procedure provided by or under this Act has produced error or defect in the decision of the case upon the merits.2.An appeal from the decision of the Tribunal may be made on a question of law only 10.Based on the above, I hold that the ruling of 22nd October 2025 is a decision of the tribunal that can be appealed on and the right does not necessarily relate to a judgement as submitted by the Claimant and hence the appellants have rightly exercised their rights of appeal as envisaged in the above section. 11.I would then address the competency of the appeal and whether it is an abuse of the court process. The law governing review is well settled under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. These provisions circumscribe the jurisdiction of a court to review its own orders upon: 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 at the time the order was made; mistake or error apparent on the face of the record; or any other sufficient reason. Additionally, the application must be made without unreasonable delay. 12.The tribunal correctly set out the applicable legal framework and further relied on judicial authority, including Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR which emphasizes that mere discovery of new evidence is insufficient unless accompanied by proof that such evidence was not within the applicant’s knowledge and could not have been produced despite due diligence. From the record, the Appellant’s application for review was premised primarily on the alleged discovery of new and important evidence, which evidence would challenge the issue of ownership of the suit property by the claimant. The Appellant contended that the said information was not available to it as at the time of the ruling as it had to be sourced from other government ministries which is a process that took time. However, the tribunal made a clear factual finding that the document’s the Appellant was seeking to rely on were documents bearing the stamp of the appellants making them internal documents well within the appellant’s possession and knowledge and further the reason raised that the said documents were not produced due to inadvertence of counsel had not been substantiated . 13.The trial court further went to indicate that even if the documents were to be considered as new evidence, the evidence was not sufficient enough to reopen the case and purportedly lead to a different determination being that the issue of proprietorship had already been determined by a competent court. The tribunal chair consequently found that there was a lack of diligence on the part of the Appellant and its counsel. This court finds no reason to fault those findings. The requirement of due diligence under Order 45 Rule 1 is not a mere technicality but a substantive threshold. As was held in Alpha Fine Foods Limited Vs Horeca Kenya Limited & 4 Others [2021] eKLR, an applicant must demonstrate not only that the evidence is new but also that it could not have been obtained with reasonable diligence prior to the impugned decision. 14.In the present case, the Appellant did not satisfy this requirement. The evidence it sought to rely on was admittedly within its possession prior to the delivery of the ruling. The failure to place it before the court cannot therefore be attributed to circumstances beyond its control but rather to its own inaction. Review cannot be used as a mechanism to cure such omissions. 15.On the issue of the tribunal not allowing the interested parties to come on record, the learned chair clearly indicated that the interested parties had already been allow to come on record before the tribunal rendered its judgement. 16.The Appellant also invoked the ground of “any other sufficient reason” While it is true that this ground is broad and not restricted to the other specified grounds, it must still be exercised judiciously and within the framework of justice. The tribunal considered this argument and found that the reasons advanced did not amount to sufficient cause, particularly in light of the demonstrated lack of diligence. I agree with that finding. To hold otherwise would open the door to abuse of the review jurisdiction by parties seeking to re-litigate matters that ought to have been addressed earlier. 17.I also find merit in the Claimant’s /Respondent’s submission that the Appellant has improperly sought to re-open the merits of the application to review the judgment through the present appeal. The Memorandum of Appeal raises issues relating judgment yet the ruling under appeal is confined to the question of review. This creates a misalignment between the decision appealed against and the grounds advanced. I am persuaded by the reasoning in HA v LB [2022] eKLR, where the court cautioned against litigants pursuing review and appeal in a manner that creates multiple fronts of litigation or amounts to an abuse of the court process. The sequence of applications by the Appellant first seeking to review and now appealing demonstrates an attempt to re-open issues that have already been conclusively determined 18.In the circumstances, I find that the tribunal chair properly directed himself on the law, correctly evaluated the material on record and exercised his discretion judiciously in dismissing the application for review. There is no basis for this court to interfere with that exercise of discretion.Final dispositionFor the reason and findings as above, I make the following ordersi.This appeal therefore lacks merit and is dismissed.ii.The ruling of the Land acquisition tribunal delivered on 22nd October 2025 is hereby upheld.iii.The appellants to bear the costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JUNE 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Olalo for the AppeallantMs. Obiri for the RespondentPhilomena W . Court Assistant