Omunyokho v Omunyokho (Environment and Land Case E472 of 2014) [2026] KEELC 1710 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the applicant has met the threshold for grant of orders of review
Key legal issues
#Whether the applicant met the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1
The threshold was not met; the application was dismissed
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.
Whether a pending appeal bars a review application by the aggrieved party
Pursuing review while simultaneously challenging the same judgment on appeal amounts to an abuse of the court's process
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.
Whether the delay in bringing the review application was excusable
The approximately 19-month delay between the judgment of 18th September 2023 and the application of 22nd April 2025 was inordinate
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.
Legal principles established
#- 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
#- 1.Dismissal of the application dated 22nd April 2025
- 2.Costs of the application awarded to the defendant/respondent
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 and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court that passed the decree)
Relief refused
#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
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
#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.
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
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.
a period of about 19 months, in my view, amounts to inordinate delay
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.
Issues in the judgment
#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'
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.