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ELCDismissedNotice of motion dated 22nd April 2025 (in the suit over Butsotso/Shikoti/7164 and 7165)

Omunyokho v Omunyokho (Environment and Land Case E472 of 2014) [2026] KEELC 1710 (KLR)

Environment and Land Court (not expressly named in the judgment text)
11 March 2026
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to revisit its 2023 land judgment because the applicant waited too long and was already appealing, and he must pay the other side's costs.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 22nd April 2025 in which the plaintiff sought review, variation and setting aside of the court's judgment of 18th September 2023, which had dismissed his case and declared parcels Butsotso/Shikoti/7164 and 7165 the only valid titles created from parcel Butsotso/Shikoti/2310. The applicant argued the judgment contained errors, misapprehended the facts and misapplied the law, relied on Kisumu HCA No. 202 of 1996, and sought discovery of a Land Disputes Tribunal decision (Lurambi Case No. 41 of 1996) plus orders compelling the Land Registrar and County Head Surveyor to explain disparities in land records. The defendant opposed, pointing out that judgment had been delivered, costs taxed, a notice of appeal filed and an active appeal, Kisumu CA No. E263 of 2023, was pending; that parcels 7122 and 7123 had been nullified in Kakamega Misc. Application No. 95 of 1997; and that titles to 7164 and 7165 had been upheld through dismissed appeals. The court framed a single issue: whether the applicant met the review threshold under section 80 of the Civil Procedure Act and Order 45 Rule 1. It held the Tribunal decision was not newly discovered with due diligence, that complaints about the court's factual and legal conclusions belong on appeal, and that a delay of about 19 months was inordinate. Pursuing review while prosecuting an appeal was an abuse of process. The application was dismissed with costs to the defendant.

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 grant of orders of review

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 threshold was not met; the application was dismissed

Reasoning

The court recited section 80 and Order 45 Rule 1, which restrict review to discovery of new and important matter or evidence not obtainable with due diligence, error apparent on the face of the record, or sufficient cause, and require the application without unreasonable delay. The purported 'new' Land Disputes Tribunal decision of 1996 was not shown to be undiscoverable with due diligence. Grievances about the court's factual and legal conclusions are appellate matters, and an approximately 19-month delay was inordinate, with the pending appeal rendering the review an abuse of process.

p. 4
02

Whether a pending appeal bars a review application by the aggrieved party

Holding

Pursuing review while simultaneously challenging the same judgment on appeal amounts to an abuse of the court's process

Reasoning

The respondent showed that a notice of appeal was filed on 25th September 2023 and an appeal, Kisumu CA No. E263 of 2023, was active. The applicant sought simultaneously to have the appellate court correct the judgment and to have this court revisit its own conclusions. The court held that such a duplicative course is abusive of process and constitutes an additional ground for refusing the review.

p. 4
03

Whether the delay in bringing the review application was excusable

Holding

The approximately 19-month delay between the judgment of 18th September 2023 and the application of 22nd April 2025 was inordinate

Reasoning

The judgment was delivered on 18th September 2023 and the application was filed on 22nd April 2025, a gap of about 19 months. Order 45 Rule 1 requires an application for review to be made without unreasonable delay. The applicant's assertion that there was no inordinate delay was not accepted, and the delay independently disentitled him to the discretionary relief of review.

p. 4

Legal principles established

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  • Review is confined to the three grounds in Order 45 Rule 1 - discovery of new and important matter not obtainable with due diligence, error apparent on the face of the record, or sufficient cause - and must be sought without unreasonable delay
  • A court cannot, on review, revisit the correctness of its own factual or legal conclusions; such complaints lie on appeal

Court orders

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  1. 1.Dismissal of the application dated 22nd April 2025
  2. 2.Costs of the application awarded to the defendant/respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court that passed the decree)

Relief refused

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Review, variation and/or setting aside of the judgment and decree of 18/09/2023

No discovery of new matter exercisable with due diligence, no error apparent on the face of the record, no sufficient cause; complaints about the judgment are matters for appeal; ~19 months' delay was inordinate and pursuing review while on appeal is an abuse of process

p. 4

Relief declaring Butsotso/Shikoti/7122 and 7123 as emanating from Butsotso/Shikoti/2310

Fell with the dismissal of the review application; the respondent asserted the subdivisions were nullified in Kakamega Misc. Application No. 95 of 1997

Orders compelling the Land Registrar Kakamega and County Head Surveyor to appear and explain the alleged disparity in land records

Not granted as the application was dismissed in its entirety

Costs

Costs of the application to the defendant/respondent

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.

The upshot is that I find no merit in the application dated 22nd April 2025, which I dismiss with costs to the defendant/respondent.
p. 4Final orders - dismissal of review application with costs
review can only be based on the three conditions being discovery of new evidence that could not be availed even with exercise of due diligence, error apparent on the face of the record or suficient cause
p. 4Scope of review under Order 45 Rule 1
are matters that can only be raised on appeal, as this court has no jurisdiction to consider whether its application of the law was wrong, as that will amount to the court sitting on appeal of its own decision.
p. 4A court on review cannot sit on appeal over its own decision
a period of about 19 months, in my view, amounts to inordinate delay
p. 4Inordinate delay in bringing the review application
The fact that the appellant has challenged this courts judgment on appeal and is also before me arguing that this court erred in the conclusions arrived at in the judgment, amounts to an abuse of the court process.
p. 4Abuse of process - pursuing review alongside an active appeal

Issues in the judgment

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minor

The judgment is internally inconsistent as to the date of filing of the application - the motion is dated 22nd April 2025 and described as 'made on 24th April 2025'

minor

The judgment inconsistently refers to the same applicant as 'plaintifi' and 'appellant' although the matter before the court is a review application, not an appeal

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, "Omunyokho v Omunyokho (Environment and Land Case E472 of 2014) [2026] KEELC 1710 (KLR)", Case Analysis (2026). Notice of motion dated 22nd April 2025 (in the suit over Butsotso/Shikoti/7164 and 7165). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1710/eng@2026-03-11

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