Khauka (Administrator of the Estate of Luka Masakha) v Wepukhulu (Civil Appeal 134 of 2019) [2025] KECA 707 (KLR)
The bottom line
#The Court of Appeal confirmed that in Kenya you cannot use a review application to overturn a judgment you dislike — your remedy is an appeal, and missing it can be fatal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge was correct in declining to review the ruling of 4th October, 2017 on the grounds presented by the appellant to the court
Key legal issues
#Whether the ELC judge erred in declining to review the ex parte judgment on the ground of an error apparent on the face of the record (want of jurisdiction over land in the name of a deceased person)
The learned Judge was correct; a jurisdictional question is a substantive question of law that can only be determined on appeal, not review, and the alleged error was at most an error of law.
The appellant elected not to appeal the ex parte judgment or the ruling declining to set it aside, and instead pursued review. Under Order 45 Rule 1 the grounds are discovery of new evidence, error apparent on the face of the record, or any other sufficient reason. The alleged want of jurisdiction was an error of law, which National Bank of Kenya v Ndungu Njau holds is not a ground for review. Review cannot be a disguised appeal against another judge's decision.
Whether the respondent lacked capacity to file the adverse possession suit without letters of administration to his father's estate
This could only be a ground of appeal against the ex parte judgment, not a ground for review of the same judgment before the same court.
The court noted the record does not clarify in what capacity the respondent sued for his father's claim, and that this may have been a good ground for appeal against the ex parte judgment of 30th July, 2015. However, having elected to forgo an appeal and instead file for review, the appellant could not raise it in review or in the present appeal.
Whether the alleged conflicting orders of the probate court and the ELC constituted a sufficient reason for review
No; the effect of the ELC judgment is that the 3.5 acres ceased to form part of the estate, and it is for the administrator to regularize the distribution accordingly.
The appellant argued the probate court's orders lifting restrictions and the ELC judgment created conflict and confusion requiring review. The court held the ELC judgment means the estate is less 3.5 acres acquired by adverse possession, and the appellant as administrator must regularize matters to account for that loss. This was not a sufficient reason to warrant review.
Whether the trial court could revisit the issue of setting aside the ex parte judgment
No; that issue had been determined by Mukunya J in his ruling of 4th October, 2017, against which no appeal was filed, and was therefore res judicata.
The appellant had earlier applied to set aside the ex parte judgment; that application was dismissed on 4th October, 2017 and no appeal was preferred. The trial judge correctly held he could not revisit the issue, and the subsequent review application could not relitigate it. The appellant's strategic choice limited the arguments available to him.
Legal principles established
#- A question of jurisdiction cannot be contested in a review application; it is a substantive question of law determinable only on appeal.
- An error apparent on the face of the record must be self-evident and not require elaborate argument; an erroneous conclusion of law is a ground for appeal, not review.
- Review jurisdiction cannot be used to reverse a reasoned decision, re-appraise evidence, or attack a court's process of reasoning; such grievances must be processed through an appeal.
- A claim for adverse possession can be instituted against the estate of a deceased person.
- The phrase 'any other sufficient reason' in Order 45 Rule 1 need not be analogous with the other grounds for review.
Court orders
#- 1.The appeal is dismissed
- 2.There will be no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Bungoma
- Bungoma Environment and Land Court Case No. 11 of 2014
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act against the ruling of the Environment and Land Court
Relief refused
#Setting aside of the ruling of the Environment and Land Court and vacation of the ex parte judgment of 30th July, 2015
The appeal attacked the ex parte judgment and the ruling of 4th October, 2017, neither of which was on appeal; the issues raised could only be pursued by appeal, not review
Costs
No order as to costs – 'We, therefore, order that there will be no order as to costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have said enough to demonstrate that the appeal herein is without merit and must fail. We hereby dismiss it. We note that the respondent did not participate in the appeal at all. We, therefore, order that there will be no order as to costs.
A question of jurisdiction is not one that can be contested in a review application. It is a substantive question of law which can only be determined in an appeal.
the review jurisdiction of the court cannot be used to reverse a reasoned decision of the court or to re-appraise evidence or to attack the process of reasoning by a court. These types of grievances must be processed through an appeal.
The answer to that submission is that a claim for adverse possession can be instituted against the Estate of a deceased person.
Misconstruing a statute or other provisions of law cannot be a ground for review.
Issues in the judgment
#The judgment states the impugned ruling was dated 9th May, 2019 in one passage but repeatedly refers to a 'ruling by Olao J. dated 19th May, 2019' elsewhere.
The judgment refers inconsistently to the date of the ruling declining to set aside the ex parte judgment, citing 4th October, 2017 in one passage and 'ruling dated 4th October, 2019' in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khauka (Administrator of the Estate of Luka Masakha) v Wepukhulu (Civil Appeal 134 of 2019) [2025] KECA 707 (KLR)", Case Analysis (2025). Civil Appeal (Bungoma ELC appeal) – memorandum of appeal dated 12th July, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/707/eng@2025-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.