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Court of AppealDismissedNotice of Motion seeking review of Civil Appeal No. 36 of 2018 (judgment of 13th May 2022)· [2025] KECA 844 (KLR)

Valerian Kipngetich Tormoi v Gregory Kipchumba Koros & 3 others

Court of Appeal of Kenya
9 May 2025
2,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to change its earlier ruling that a land claimant won only 0.3 acres, not 14, confirming that losing parties cannot use review to re-argue their case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Mativo, Gachoka and Odunga, JJ.A.) dismissing an application by Notice of Motion to review and set aside the court's own judgment of 13th May 2022 in Civil Appeal No. 36 of 2018. In that earlier judgment, a bench of Kiage, Mumbi Ngugi and Tuiyott, JJ.A. set aside findings of Odeny, J. of the Environment & Land Court and held that the applicant had acquired only 0.3 acres, not 14 acres, by adverse possession of land parcels Nandi/Chepterwai/850, 852, 853, 854, 855, 857 and 858. The applicant sought review on the basis of an apparent error on the face of the record, contending the court had intended to award her 14 acres as claimed in her pleadings. The respondents opposed, asserting the 0.3-acre finding was clear and reasoned. The court applied Benjoh Amalgamated Ltd v Kenya Commercial Bank, Parliamentary Service Commission v Martin Nyaga Wambora, Mbogo v Shah and National Bank of Kenya v Ndungu Njau, restating that review of its own judgment is a residual equitable jurisdiction exercisable only in the clearest of cases and, per Benjoh, only in decisions not appealable to the Supreme Court. After judgment a court is functus officio and cannot revisit its judgment on the merits unless provided by law. The court found the grounds and supporting affidavit scant, noted that the lead judgment of Tuiyott JA had deliberately re-evaluated the evidence and found exclusive possession of only 0.3 acres, and held there was no apparent error on the face of the record - only the lamentations of a dissatisfied litigant seeking a second bite at the cherry. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the residual jurisdiction to review a judgment of the Court of Appeal was properly invoked

Holding

The application failed: the applicant merely re-asserted her claim to 14 acres rather than demonstrating an apparent error on the face of the record.

Reasoning

The court reviewed the Benjoh Amalgamated, Wambora and Ndungu Njau authorities on review. Under them, review requires a self-evident error apparent on the face of the record, not re-argument of the merits. The lead judgment of Tuiyott JA had analyzed the evidence and deliberately found possession of only 0.3 acres to be exclusive. The applicant's grounds and affidavit were scant and amounted to lamentation by a dissatisfied litigant. Accordingly, the functus officio principle prevailed and the residual jurisdiction was not available.

p. 5
02

Whether the reduction of the award from 14 acres to 0.3 acres was an apparent error on the face of the record

Holding

No: the finding of 0.3 acres was clear, deliberate and unambiguous, being the result of a re-evaluation of evidence, not a clerical or mathematical error.

Reasoning

The impugned judgment's lead decision expressly re-evaluated the evidence, found possession of the remainder was neither peaceful, exclusive nor uninterrupted because the appellants also used the land, and concluded the respondent had not established adverse possession beyond 0.3 acres. A change from 0.3 to 14 acres would be a substantive alteration of the findings, not correction of a misstatement. Counsel for the respondents correctly noted this is not a clerical error.

p. 5

Legal principles established

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  • A Court of Appeal may exercise residual jurisdiction to review its own decision only in the clearest of cases and in cases not appealable to the Supreme Court
  • After judgment a court becomes functus officio and cannot revisit its own judgment on its merits unless provided by law
  • An error on the face of the record must be self-evident and not require elaborate argument; disagreement with the outcome or an erroneous conclusion of law is not a ground for review
  • Review is not a second appeal and cannot be used to re-argue the merits

Court orders

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  1. 1.The Notice of Motion application for review is dismissed with costs to the respondents
On appeal from
Court of Appeal of Kenya (the court's own prior judgment) - underlying trial decision was the Environment & Land Court at Eldoret (Odeny, J.)
Civil Appeal No. 36 of 2018; Eldoret ELC No. 571 of 2012
Jurisdiction invoked
Article 50 of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 35 and 47 of the Court of Appeal Rules (inherent/residual jurisdiction to review the court's own judgment)

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, "Valerian Kipngetich Tormoi v Gregory Kipchumba Koros & 3 others", Case Analysis (2025). Notice of Motion seeking review of Civil Appeal No. 36 of 2018 (judgment of 13th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/844/eng@2025-05-09

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