Lemein v Nabaala & 11 others (Environment and Land Case E001 of 2021) [2026] KEELC 3454 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to reopen a dismissed land suit, confirming that review cannot be used as a second chance to reargue lost cases.
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 Plaintiff/Applicant's Notice of Motion Application for Review meets the criteria for review of a judgment and whether it is merited
- 2.Who should bear the costs of the Application
Key legal issues
#Whether the judgment of 30th January 2026 contained an error apparent on the face of the record by failing to consider the Certificate of Official Search dated 13th February 2019 and the Field Survey Report dated 16th November 2020
No error apparent on the face of the record was established. The judgment gave various reasons for dismissing the suit, including failure to call the other alleged users of the access road, and did not dismiss the suit solely because of failure to produce the Certificate of Official Search.
The court reasoned that although the plaintiff alleged two omissions (paras 53 and 72 of the judgment), the suit was dismissed for multiple reasons, not merely the alleged overlooked documents. The alleged error is not self-evident and would require elaborate argument and re-appraisal of evidence. Such reconsideration would amount to the court sitting on appeal over its own judgment, which is impermissible in review proceedings.
Whether there was any other sufficient reason to warrant review, including the earlier orders of 22nd March 2022 and the contempt finding of 4th October 2023
The earlier temporary orders and the contempt finding did not constitute sufficient reason for review, nor proof of the existence of the access road.
The court held that interim orders were based on prima facie considerations and remain temporary until the suit is determined. The contempt proceedings related to breach of temporary orders and were not automatic proof of the road's existence. The plaintiff bore the duty to marshal sufficient evidence and prove his case on the balance of probabilities, which he failed to do at trial.
Who should bear the costs of the application
Costs of the dismissed application were awarded to the Defendant/Respondent, costs following the event.
The court, having dismissed the application entirely, applied the principle that costs follow the event. The successful party is to be compensated for the trouble of defending the application. No exceptional circumstances were raised to depart from the ordinary rule on costs.
Legal principles established
#- An error apparent on the face of the record must be self-evident and not require elaborate argument or long-drawn reasoning to establish
- Review is not an appeal; a trial court cannot re-evaluate the merits of evidence to reach a different conclusion under the guise of review
- Interim/temporary orders do not amount to proof of a claim; a plaintiff must still prove its case at trial to the required standard
Court orders
#- 1.The Notice of Motion Application dated 13th February 2026 is dismissed entirely
- 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
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 40 and Order 45 Rule 1 of the Civil Procedure Rules 2010; Articles 40, 50 and 159 of the Constitution of Kenya 2010
Relief refused
#Temporary injunction restraining the Defendant from closing, obstructing, fencing, interfering with or blocking the access road pending hearing and determination of the application
The application was dismissed entirely; the apprehension that the interim injunction would automatically discharge did not justify review or continued restraint
Review, variation and/or setting aside of the judgment delivered on 30th January 2026
No error apparent on the face of the record or sufficient reason was established; the court gave various reasons for dismissing the suit beyond the alleged omissions, and reconsidering evidence afresh would amount to sitting on appeal over its own judgment
Reconsideration of the material evidence on record upon review
Review proceedings are not an appeal; re-appraisal of the entire evidence would amount to exercise of appellate jurisdiction
Costs
The application is dismissed entirely with costs 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 instant Application is not merited, and the same is dismissed entirely with costs to the Defendant /Respondents.
This court finds and holds that the Plaintiff/applicant has not established any error apparent or any sufficient reasons to warrant review of the Court’s Judgment of 30th January 2026.
Asking this court to reconsider the evidence afresh is tantamount to asking the Court to sit in its own Appeal.
It is evident that temporary orders of whichever nature are temporary until the suit is heard and determined.
The error or omission must be self-evident and should not require an elaborate argument to be established.
Any other sufficient reason need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act.
Issues in the judgment
#The Defendant's submissions state that the Plaintiff produced 'a Search Certificate dated 13th February 2026' whereas the application and affidavit refer to a Certificate of Official Search dated 13th February 2019; the date appears to be an error.
The citation for Nyamogo & Nyamogo Advocates vs Kogo appears with two different citations in the same judgment: '[2001] EA 173' (as relied on by the Plaintiff) and '(2001) EA 170' (as cited by the court).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lemein v Nabaala & 11 others (Environment and Land Case E001 of 2021) [2026] KEELC 3454 (KLR)", Case Analysis (2026). ELC OS E001 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3454/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.