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Court of AppealDismissedCivil Appeal (ELC) appeal against the Ruling of Boaz B. Olao, J. in ELC Case No. 177 of 2014

Wangolo v Kasambula & another (Civil Appeal 156 of 2018) [2025] KECA 226 (KLR)

Court of Appeal of Kenya
7 February 2025
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land bought after a court judgment—especially to defeat that judgment—gives the buyer no protection, and the title can be cancelled.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Kisumu against the Ruling of Boaz B. Olao, J. in ELC Case No. 177 of 2014 delivered on 18th October 2018, which dismissed an application for joinder, stay of execution, and review or setting aside of a judgment of Mukunya, J. The underlying judgment had awarded the late Christopher Wanga Simiti 3.7076Ha of land parcel Ndivisi/Khalumuli/1526 on the basis of over 12 years' continuous possession. Before the decree could be executed, the registered owners subdivided the land and transferred portions to third parties, including the appellant; the trial court declared the sub-division and transfers null and void and cancelled the resulting titles. The appellant, a post-judgment purchaser, sought review, arguing he had been condemned unheard and that his constitutional rights under Articles 47, 48 and 50 had been violated. The Court of Appeal framed the sole pertinent issue as whether Olao, J. exercised his discretion judiciously. Applying the Shah vs Mbogo test, the Court found the discretion properly exercised: the judgment was a merit judgment not capable of being set aside, no Order 45 ground for review was established, and the appellant, having bought the land post-judgment, could not claim to have been condemned unheard. The Court condemned the sub-division and transfer of the suit land as a despicable attempt to frustrate the judgment. The appeal was dismissed with costs to the 1st respondent. The Court also apologised for the delay in delivering the judgment, which was inadvertently not diarized.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Olao, J. exercised his judicial discretion judiciously in declining to review the judgment on the grounds raised by the appellant
  2. 2.Whether the appellant, who acquired his title post-judgment, was condemned unheard in breach of Articles 47, 48 and 50 of the Constitution
  3. 3.Whether the application for review met the threshold under Order 45 of the Civil Procedure Rules

Key legal issues

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01

Judicial review of a judge's discretion to refuse review of a judgment

Holding

Olao, J. exercised his discretion judiciously in refusing to review a judgment delivered on merit

Reasoning

The court applied the Shah vs Mbogo test, asking whether the judge considered extraneous matters or failed to consider relevant ones. It found no apparent error on the face of the judgment, no discovery of new material, and no misdirection. A merit judgment is not capable of being set aside, and the Order 45 conditions for review were not demonstrated.

p. 4
02

Requirements for review under Order 45 of the Civil Procedure Rules

Holding

The appellant failed to demonstrate any of the grounds for review

Reasoning

There was no apparent error on the face of the judgment, no discovery of relevant material that could not have been obtained with reasonable diligence, and nothing to show the judge considered extraneous or irrelevant matters or failed to consider relevant ones. The application for review was also filed inordinately late, as the court below had found.

p. 4
03

Titles obtained in contempt of court orders

Holding

Titles procured by sub-dividing and transferring suit land contrary to a subsisting judgment were void and properly cancelled

Reasoning

The sub-division and transfers were done after judgment and in total disregard of it, in an attempt to extinguish the subject matter of the suit and frustrate its execution. Both the trial judge and Olao, J. condemned the conduct, and this Court found those sentiments appropriate. The issue of bias against the appellant was misplaced.

p. 4

Legal principles established

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  • An appellate court will only interfere with a discretionary decision of a judge where it is shown the judge acted whimsically, misdirected himself, considered extraneous matters or failed to consider relevant matters, resulting in a wrong decision.
  • A purchaser of land after judgment, who was not a party to the suit, cannot claim to have been condemned unheard where the sub-division and transfer were done after the court's determination in an attempt to frustrate the judgment.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court
ELC Case No. 177 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court ruling (the judgment does not cite a specific jurisdictional provision)

Relief refused

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Setting aside of the Ruling dismissing the application for review

The learned Judge exercised his discretion judicially; the conditions for review under Order 45 were not demonstrated

p. 4

Claim that the appellant was condemned unheard

The appellant bought the land post-judgment and was not a party when the suit was heard and determined on its merits

p. 4

Costs

Appeal dismissed with costs to the 1st respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The test for this is whether the appellant had satisfactorily demonstrated that in reaching his decision, the learned Judge acted whimsically or misdirected himself in the exercise of his discretion and as a result arrived at a wrong decision.
p. 4Test for interfering with judicial discretion
He bought the land post judgment and he cannot, therefore, complain that he was condemned unheard.
p. 4Purchaser post-judgment cannot claim breach of fair hearing
It is clear from the record that the sub-divisions were done after the court had already made its determination, in an attempt to frustrate the judgment of the court.
p. 4Dealing with suit land to frustrate a judgment
We find this appeal totally devoid of merit and dismiss it with costs to the 1st respondent.
p. 4Final orders - disposition

Issues in the judgment

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minor

The judgment refers to the conditions for review as being set under 'Order 45 of the Civil Procedure Act' in one passage, while elsewhere correctly referring to Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wangolo v Kasambula & another (Civil Appeal 156 of 2018) [2025] KECA 226 (KLR)", Case Analysis (2025). Civil Appeal (ELC) appeal against the Ruling of Boaz B. Olao, J. in ELC Case No. 177 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/226/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.