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ELCDismissedNot stated in judgment (appellant's application arising from judgment delivered 19th June 2024)

Wesonga v Tsimonjela & another (Environment and Land Appeal E025 of 2022) [2025] KEELC 5429 (KLR)

Environment and Land Court
16 July 2025
ANA. NYUKURI
1,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a Notice of motion dated 10th July 2024, the appellant/applicant sought review and setting aside of a judgment delivered on 19th June 2024, and entry of judgment in her favour as prayed in the lower court. Her case was that the court misapprehended her evidence by finding that the suit property, part of parcel South Kabras/Chesero/3289, had been sold and resold, whereas her portion measuring 0.4 Ha was separately occupied by her exclusively and had not been resold; she argued she was entitled to specific performance and that no party would be prejudiced. The application, supported by her affidavit and submissions, was unopposed. The court framed a single issue: whether the applicant met the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, which require discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, without unreasonable delay. Relying on Nyamogo & Nyamogo v Kogo and Republic v Advocates Disciplinary Tribunal Ex parte Appollo Mboya, the court held that review is not an appeal in disguise and that a mere erroneous decision or wrong view is no ground for review. The applicant's real grievance was that the court misapprehended her evidence, a complaint that can only be escalated to the Court of Appeal, as the court has no jurisdiction to sit on appeal over its own decision. The application was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the applicant has met the threshold for review of the judgment delivered on 19th June 2024

Key legal issues

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01

Whether the applicant met the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The application failed; the applicant's grievance amounted to dissatisfaction with the court's findings on evidence, which is a matter for appeal and not review.

Reasoning

The court set out the three grounds of review - discovery of new and important matter, error apparent on the face of the record, and sufficient reason - all to be made without unreasonable delay. The applicant's real complaint was that the court misapprehended her evidence and reached a wrong conclusion. Citing Nyamogo & Nyamogo v Kogo and Republic v Advocates Disciplinary Tribunal Ex parte Appollo Mboya, the court held that a mere erroneous decision is not an error apparent on the face of the record, and review is not an appeal in disguise.

p. 4

Legal principles established

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  • An application for review cannot be used as a disguised appeal against a court's own findings; grievances about misapprehension of evidence lie on appeal.

Court orders

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  1. 1.The Notice of motion dated 10th July 2024 is dismissed with no order as to costs

The bench

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

AN
majority

Wrote the judgment

On appeal from
Lower court (magistrates' court)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

Relief refused

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Review and/or setting aside of the judgment delivered on 19th June 2024

The applicant's complaint that the court misapprehended her evidence is a ground of appeal, not review; the court has no jurisdiction to sit on appeal of its own decision

p. 4

Judgment entered for the appellant as prayed in the lower court

Follows dismissal of the review application

p. 4

Costs

No order as to costs - application dismissed with no order as to costs

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.

There is a real distinction between a mere erroneous decision and an error apparent on the face of the record.
p. 3Error apparent on the face of the record
Mere error or wrong view is certainly no ground for review though it may be one for appeal.
p. 3Review vs appeal
I find no merit in the application dated 10th July 2024 which I dismiss with no order as to costs.
p. 4Final orders - dismissal

Issues in the judgment

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minor

Affidavit date inconsistency: application dated 10th July 2024 but supporting affidavit described as sworn '10th July 2014'

minor

Gender pronoun inconsistency in referring to the applicant ('she' and 'he' used interchangeably)

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, "Wesonga v Tsimonjela & another (Environment and Land Appeal E025 of 2022) [2025] KEELC 5429 (KLR)", Case Analysis (2025). Not stated in judgment (appellant's application arising from judgment delivered 19th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5429/eng@2025-07-16

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