Mochache v Land Registrar, Nyamira County & another; Commission on Administrative Justice & 2 others (Interested Parties) (Environment and Land Petition E002 of 2023) [2025] KEELC 7596 (KLR)
The bottom line
#A Kenyan court ruled that disagreeing with a judge's legal reasoning is grounds for an appeal, not a review application.
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 court has jurisdiction to hear and determine the application
- 2.Whether the orders sought in the application should issue
Key legal issues
#Jurisdiction to entertain an application for review of a ruling by a judge of concurrent jurisdiction
The court had jurisdiction insofar as the application was properly brought under Order 45 of the Civil Procedure Rules, Order 45 Rule 2(2) applying because the judge who made the order had been transferred; but the application failed on its merits.
The application was principally for review of the ruling of 13th November 2024 delivered in this case, as prayers 3 and 4 were consequential on prayer 2. Under Order 45 Rule 2(2), since Mugo Kamau, J. who made the order had been transferred, the present judge could hear it. However, having jurisdiction did not mean the review threshold was met.
Whether the grounds advanced established a case for review
No. The applicant was in substance complaining that the judge erred in law, which is a ground of appeal, not review. The application was dismissed with costs.
Review under Order 45 lies only on discovery of new and important matter, error apparent on the face of the record, or sufficient reason. The applicant relied on the contention that the ruling was a hindrance to justice and violated her constitutional rights, i.e. disagreement with the judge's legal conclusion. Per National Bank of Kenya v Ndungu Njau, an erroneous conclusion of law grounds an appeal, not a review; otherwise a judge would sit in appeal on his own judgment.
Legal principles established
#- A litigant cannot use a review application to correct a perceived mistake of law or fact or an erroneous finding; a wrong conclusion of law is a ground of appeal, not review
- A court of concurrent jurisdiction cannot conduct merit review of another judge's decision; recourse lies by appeal to the Court of Appeal under Section 16 of the Environment and Land Court Act
Court orders
#- 1.Notice of Motion dated 13th November 2024 is dismissed with costs to the Respondents and Interested Parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45 Rule 1(b) of the Civil Procedure Rules; Section 16 of the Environment and Land Court Act
Relief refused
#Review and/or vacation of the ruling delivered on 13th November 2024
The Applicant was challenging an erroneous conclusion of law by the judge, which is a ground of appeal, not review
Orders compelling the 1st Respondent to provide documents and information prior to any boundary demarcation exercise, and a stay of survey/demarcation
These prayers were contingent upon review being granted
Costs
Dismissed with costs to the Respondents and Interested Parties
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.
In view of the foregoing discourse, I find no merit in Notice of Motion dated 13th November 2024, and I therefore dismiss it with costs to the Respondents and Interested Parties.
If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law.
There is no doubt that I do not have jurisdiction to conduct merit review of a decision by a Judge of concurrent jurisdiction. Pursuant to Section 16 of the Environment and Land Court Act, such proceedings must be by way of an appeal to the Court of Appeal.
Without jurisdiction, the proceedings come to a certain end and the Court cannot take any further step.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mochache v Land Registrar, Nyamira County & another; Commission on Administrative Justice & 2 others (Interested Parties) (Environment and Land Petition E002 of 2023) [2025] KEELC 7596 (KLR)", Case Analysis (2025). Nyamira ELC Petition dated 9th October 2023 (Notice of Motion dated 13th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7596/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.