https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1521

Timoi Farms and Estates Limited & another v Langat (Civil Application E164 of 2023) [2026] KECA 1521 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1521 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E164 of 2023 HA Omondi, JM Mativo & GW Ngenye-Macharia, JJA July 31, 2026 Between Timoi Farms and Estates Limited 1st Applicant Isaya Kiptonui Kimeywo 2nd Applicant and Florence Chelangat Langat Respondent (An application for review of orders of this Court (Omondi, Mativo & Ngenye, JJ. A) dated 28th July, 2023 in NRB ELC No.606 of 2015 Formerly Nak HCCC No.231 of 2012) Ruling 1.A synopsis of this Court’s ruling dated 28th July 2023 which triggered the application dated 4th August 2023 the subject of this ruling is necessary so as to properly contextualize the parties diametrically opposed arguments in support of their respective positions. Briefly, by an application dated 27th April 2023, the applicants moved this Court seeking stay of execution of the judgment/decree and all consequential orders issued by the Environment and Land Court (the ELC) in Nairobi ELC No. 606 of 2015 on 18th April 2023 pending the hearing and determination of their intended appeal by this Court. The applicants also prayed that the costs of the application be provided for. After considering the application and the parties’ submissions, this Court (Omondi, Mativo & Ngenye-Macharia) in the definitive paragraphs stated:“16.We have considered the above threshold, in light of the applicants’ positions herein on this prerequisite. The applicants in their affidavit depone that they have been in occupation of the suit properties since the year 2008, therefore if a stay of execution is not granted, the respondent will proceed to evict them from the suit properties occasioning them a substantial loss to the tune of Kshs.200 million being the value of their developments thereon rendering the appeal a mere academic exercise. On the part of the respondent, she depones that she has been denied possession of the suit properties for a period exceeding 12 years while the respondent (sic) continues to unjustly enrich themselves from the suit properties.17.We find that it has been demonstrated that the developments on the suit properties are enormous and a lot of time and money has gone into the developments. We are persuaded that if the application is declined, the applicants may never be able to recoup what has gone into the developments, were they to succeed with their appeal. That will render the appeal nugatory. To use the word of the Supreme Court in the case of…18.We are satisfied that the applicants have satisfied the twin requirements for granting of orders under Rule 5(2) (b) of the Court of Appeal Rules. However, since an order of stay of execution is equitable remedy, we find that it is proper for the income from the tea bushes to be preserved in a joint interest earning account in the name of the parties herein pending hearing and determination of the appeal. Consequently, we allow the application dated 27th April 2023 and order as follows:Pending the hearing and determination of the appeal there shall be a stay of execution of the judgment and orders issued in NRB ELC No. 606 of 2015 on April 18, 2023;That the income from the tea bushes to be preserved in an interest earning account in the joint names of the parties herein pending hearing and determination of the intended appeal.Costs of the application shall abide by the outcome of the intended appeal.” 2.Dissatisfied by paragraph (b) above which reads “the income from the tea bushes to be preserved in an interest earning account in the joint names of the parties herein pending hearing and determination of their intended appeal”, the applicants are beseeching this Court to review the said order. Lastly, the applicants pray for costs of the application to be provided for. 3.The grounds in support of the application are:(a)this Court having appreciated that the applicants planted and took care of the tea bushes coupled by the fact that the respondent has never taken possession of the land or the tea plantation and the obvious animosity between the parties, this Court failed to appreciate that it would be impracticable for the parties to operate a joint income account, or to jointly manage the farm which has casual and permanent workers who deserve to be remunerated in addition to several other bills which must be paid to keep the farm running;(b)the applicants contend that the respondent did not seek the said orders from this Court nor did the parties converse the said orders before the Court, therefore, the said order was made in error, hence, the need to vacate it;(c)the applicants claim that they are facing the risk of being cited for contempt despite the fact that the orders are incapable of being implemented. Accordingly, it is only fair and just that this application be allowed. 4.The respondent filed a replying affidavit dated 20th September 2023 in opposition to the application. The salient averments are:(a)the application is full of falsehoods and it is meant to defeat this Court’s orders;(b)the application is an appeal in disguise;(c)the application is incompetent;(d)the applicants in their affidavit filed in ELC 606 of 2015 averred that the respondent was in possession. 5.In support of the application, the applicant’s counsel, Mr. Kirimi filed written submissions dated 1st June 2026 which he orally highlighted. Counsel cited Jimnah Mwangi Gichanga vs. Attorney General [2015] KECA 971 (KLR), Benjoh Amalgamated Limited & Ano. vs. Kenya Commercial Bank Limited [2014] eKLR, Musiara Ltd vs. William ole Ntimama [2004] eKLR and Taylor & Ano. vs. Lawrence & Ano. [2002] 2 ALL ER 353 in support of his assertion that this Court has residual power to review its decision where a significant injustice has occurred. 6.Mr. Kirimi argued that the impugned ruling has an error apparent on its face because the order complained of was not sought by the applicants and the order as framed cannot be practically implemented. Counsel maintained that the application was filed without delay. Lastly, Mr. Kirimi referred to Standard Chartered Financial Services Limited & 2 others vs. Manchester Outfitters (Suiting Division) Limited (Now known as King Woollen Mills Limited & 2 Others [2016] eKLR where this Court allowed an application for review on grounds that a failure of justice had crept in the court's judgment. 7.The respondent’s counsel, Ms Wangui Kimani filed written submissions dated 26th May 2026 which she highlighted. Citing Benioh Amalgamated Limited & Ano. vs. Kenya Commercial Bank Limited [2014] eKLR in support of the proposition that this Court’s jurisdiction is entirely statutory and it does not extend to general review of its own judgments or to re-open its decision, counsel maintained that the instant application is a disguised appeal which basically invites this Court to sit on appeal against its own decision. Counsel cited Uttamchandani Shah vs. Capital Markets Authority & Ano. [2Ol4] eKLR, in which this Court held that a party cannot file an appeal disguised as a review application. She also cited Board of Governors, Moi High School Kabarak vs. Molcolm Bell [2013] eKLR in which this Court reiterated that it has no jurisdiction to sit on appeal over its own decisions. Lastly, the respondent’s counsel submitted that this application is only aimed at delaying the execution of the judgment. 8.Undoubtedly, the rule in Ladd vs. Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489 is an example of a fundamental principle of our common law that the outcome of litigation should be final. However, like in many other jurisdictions, this Court has firmly established through jurisprudence, notably in cases like Benjoh Amalgamated Ltd vs. Kenya Commercial Bank Limited Ltd [2014] eKLR and AVH Legal LLP vs. Raballa & 8 Others [2023] KECA 232 (KLR) that it retains a residual or inherent jurisdiction to reopen and review its own final judgments/rulings. Since this power operates as an extreme exception to the principle of finality (res judicata), a review will only be granted under exceptional and strictly defined grounds such as:(i)where the judgment or ruling is obtained by fraud or deceit.(ii)when the judgment is a nullity such as when the Court itself was not competent; or(iii)when the Court was misled into giving judgment/ruling under a mistaken belief that the parties had consented to it; or(iv)when judgment was given in the absence of jurisdiction; or(v)where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. (See the Nigerian Supreme decision in Amalgamated Trustees Ltd. vs. Associated Discount House Ltd. [2007] LPELR-454 (SC)). 9.However, as was explicitly held by the Supreme Court in Fanikiwa Limited & 3 Others vs. Sirikwa Squatters Group & 17 Others, Supreme Court Petition No. 32 (E036) of 2022 (Consolidated with Petitions Nos. 35 (E038) & 36 (E039) of 2022), a review is not another "bite at the cherry". If the Court misconstrued a statute or made an incorrect exposition of law, the remedy is an appeal to the Supreme Court, not a review. Suggesting that the same bench or another bench or judge could have arrived at a different conclusion based on the same facts is insufficient. Matters that were already vigorously contested and determined cannot be re-litigated under the guise of a review. 10.As was held in the Australian case of Autodesk Inc vs. Dyason (No. 2) [1993] HCA 6; [1993] 176 CLR 300, the jurisdiction to review is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. The purpose of the jurisdiction is not to provide a back-door method by which unsuccessful litigants can seek to re-argue their cases. A review of a judgment is a serious step and courts are reluctant to resort to it except only where a glaring omission or patent mistake or a grave error has crept in the order or judgment owing to judicial fallibility. The discretionary power to review a judgment or a ruling at this appellate stage is obviously one that should be very sparingly exercised. 11.The applicants’ grievance as we understand it is two-fold. One, the orders granted are incapable of being implemented. Two, the said orders were not sought by the parties or argued in Court. First, to our mind, under the law, difficulty or hardship in complying with a court order is not a valid ground for a review.(See the Supreme Court of India decision in A.K. Gopalan vs. The State of Madras AIR 1950 SC 27). Similarly, difficulty in interpreting, executing or understanding a court order is not a ground for review. This position was articulated by the Privy Council in Sans Souci Ltd vs. VRL Services Ltd [2012] UKPC 6, which ruled that if an order is difficult to understand or execute, it does not mean the decision is faulty or subject to being re-litigated. The Privy Council was categorical that an ambiguous or complex order must be construed, not reviewed. The structure of an order is interpreted objectively based on the context and the reasons given by the judge at the time. Difficulty in understanding the text does not undermine the finality of the judgment/ruling itself. 12.The United Kingdom Court of Appeal reinforced the above decision in SDI Retail Services Ltd vs. The Rangers Football Club Ltd. [2021] EWCA Civ 790 by asserting that legal uncertainty regarding what an order forces a party to do is a matter of objective construction, not a gateway to review the judgment. It stated that the Court will look at the order through the lens of a reasonable person possessing all the background knowledge available to the Court at the time. A party cannot use their own subjective difficulty in executing the terms as a mechanism to challenge the order's underlying lawfulness. In any event, there is no suggestion before us that the order is ambiguous, uncertain or vague. The disagreements cited are not about the meaning of the order but the parties’ differences which show their inability to sit together and reason together or one party who is bent to frustrate the order. In any event, if an order is ambiguous, vague, the correct course of action is to apply for clarification or variation, not a review. Difficulties to implement a court order owing to parties’ strained relationship cannot be a ground for review. 13.Second, in this Court, as alluded to earlier, a review is permitted under limited circumstances at delineated by the decisions cited earlier. The argument that the order was not sought is not a ground for review but a ground of appeal. A party cannot use the review mechanism as a backdoor to rewrite the substance of an order under the guise that it is "difficult” to comply or implement the order. This Court’s residual power is linked to a discretion which enables the Court to confine its use to the cases in which it is appropriate for the jurisdiction to be exercised. The residual powers of this Court are not an open license for the court to exercise unlimited discretion. Residual powers are invoked to effect fairness between the parties where a statute falls short of doing so or where there is a gap in the law. The residual power claimed is not merely one derived from the need to make the court's order effective and to control its own procedure, but also to hold the scales of justice where no specific law provides directly for a given situation. 14.The grounds cited by the applicants do not fall anywhere near the permissible exceptional circumstances to trigger this Court’s exercise of "residual" jurisdiction normally exercisable after the final determination of the appeal or application. We find that the application for review is totally unmerited. There is no basis at all upon which we can invoke the residual powers of this Court and review or re-open the impugned ruling. The upshot is that the application dated 4th August 2023 is hereby dismissed with costs to the respondent. (Title has one respondent). DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.H. A. OMONDI…………………………JUDGE OF APPEALJ. MATIVO…………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.