Shee v Kamau & 2 others (Environment and Land Case 49 of 2021) [2025] KEELC 7915 (KLR)
The bottom line
#A Kenyan land court wiped out a judgment awarding someone a Kwale plot after buyers uncovered old litigation showing the title history was disputed, and ordered a fresh trial.
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 firm of Njuguna Kahari & Kiai Advocates is properly on record for the applicants under Order 9 Rule 9 of the Civil Procedure Rules, 2010
- 2.Whether the court lacks jurisdiction to entertain the review application in view of the withdrawn Notice of Appeal
- 3.Whether the application meets the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
- 4.Whether there was discovery of new and important matter or evidence after due diligence
- 5.Whether there is an error apparent on the face of the record
- 6.What orders should issue if the grounds for review are established
Key legal issues
#Properly coming on record after judgment under Order 9 Rule 9
The preliminary objection on this ground fails because a consent between the outgoing and incoming advocates predated the filing of the application
Order 9 Rule 9 requires a change of advocate after judgment to be effected by court order or consent. A consent dated 25/09/2024 signed by JWM Law LLP and Njuguna, Kahari & Kiai Advocates was produced, pre-dating the application of 7/10/2024. Non-compliance, if any, is procedural and not fundamental and causes no prejudice, per Tobias M. Wafubwa v Ben Butali.
Whether a withdrawn notice of appeal bars review
A notice of appeal is not an appeal; since the notice was withdrawn, there is no appeal pending and the review application is properly before the court
Section 80 and Order 45 permit review where no appeal has been preferred. Following Multi Choice (Kenya) Ltd v Wananchi Group, a notice of appeal merely evinces intention to appeal and is treated as an appeal only for limited purposes such as stay. The notice was withdrawn under rule 83 of the Court of Appeal Rules, so no appeal was instituted.
Discovery of new and important matter or evidence
The applicants, who were not parties to the prior litigation over the mother title and subdivisions, could not reasonably have been aware of the earlier judgments, rulings and Gazette Notice; the new evidence is prima facie important
The discovered material - the mandamus orders of Wambilyangah J, their setting aside, the struck-out appeals and Gazette Notice No. 5386 of 1994 - arises from litigation to which the defendants were not parties and in which PW2 was a litigant. The court gave them the benefit of doubt on diligence and found the material prima facie important to the history of the suit property, though yet to be fully tested.
Error apparent on the face of the record
No error apparent on the face of the record was established because the alleged error rests on facts that were not before the court during trial
The applicants contended the court conferred a cancelled title on the plaintiff. The court held an error apparent must be self-evident and not require elaborate argument, and that a court cannot make an error in the absence of the full facts said to give rise to it. The contention that the decree exceeded the plaint's prayers was also a matter for appeal.
Legal principles established
#- A notice of appeal is not an appeal for purposes of Order 45; a court has jurisdiction to entertain an application for review where only a notice of appeal has been lodged and subsequently withdrawn
- Compliance with Order 9 Rule 9 after judgment is achieved by a consent between outgoing and incoming advocates; leave of court is only required where there is no such consent
- Review grounds under Order 45 are disjunctive; satisfaction of any one ground suffices
- On review, the court cannot substitute the impugned judgment with dismissal of the suit; new evidence must be tested at a substantive hearing, and setting aside proceedings with a retrial is the appropriate course
Court orders
#- 1.The preliminary objection dated 1st November 2024 is dismissed with no orders as to costs
- 2.The Notice of Motion application dated 7th October 2024 is allowed in the following terms: the Judgement, Decree and all consequential orders issued on 20th September 2024 be and are hereby reviewed
- 3.The entire proceedings and the judgement dated 20th September 2024 with the attendant decree and all consequential orders are set aside
- 4.An order be and is hereby made for a retrial of the entire suit
- 5.Costs of the application shall abide the outcome of the suit upon retrial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap 21) read with Order 45 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Substitution of the judgment with an order dismissing the entire suit with costs to the Defendants
A review is not an appeal; dismissing the suit would amount to deciding the case summarily without a fair hearing on the new evidence
Citation of the Plaintiff and Halima Amir Boi for perjury under Sections 108(1) and 110 of the Penal Code
Having set aside the proceedings and judgment the court is functus officio, and perjury is a criminal offence over which it lacks jurisdiction
Costs
Costs of the application shall abide the outcome of the suit upon retrial; preliminary objection dismissed with no orders 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.
The Notice of Motion application dated 7th October 2024 is allowed in the following terms;a. The Judgement, Decree and all consequential orders issued by this Honourable Court on 20th September 2024 be and are hereby reviewed.
The entire proceedings and the judgement dated 20th September 2024 with the attendant decree and all consequential orders are set aside.
An order be and is hereby made for a retrial of the entire suit.
Costs of the application shall abide the outcome of the suit upon retrial.
The preliminary objection dated 1st November 2024 is dismissed with no orders as to costs.
The import of the foregoing discussion is that a notice of appeal is not an appeal for purposes of the present application and therefore there was no appeal and there is no appeal filed against the judgement of this court.
Firstly, a review is not an appeal and which has been stated elsewhere in this judgement. Dismissing the entire suit will amount to having decided the case summarily
Issues in the judgment
#The depositions refer to the proprietor of plot 720 re-registered in 1994 as 'Joseph Gilbert Kibe' but paragraph 101 records that 'Gilbert Gitau re-registered as lawful proprietor of plot 720', an internal inconsistency in the name
The judgment heading paragraphs describe the ruling as disposing of a Notice of Motion and Preliminary Objection but the coram section records it as a 'RULING', and the applicant's supplementary submissions are dated 25/11/2025, an apparently erroneous future-dated year
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shee v Kamau & 2 others (Environment and Land Case 49 of 2021) [2025] KEELC 7915 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7915/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.