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ELCDismissedNotice of Motion dated 19th February 2026 (suit number not stated in the judgment)· [2026] KEELC 4577 (KLR)

Bor & 8 others v Sang (Land Case Appeal E033 of 2024) [2026] KEELC 4577 (KLR)

Environment and Land Court
20 July 2026
1,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The court refused to review its land judgment because the 'new' evidence was a known, older consent order that didn't even mention the disputed parcel.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th February 2026, the Applicants sought review, setting aside and vacation of the court's judgment delivered on 19th November 2025, a declaration that L.R No. Transmara/Angata Barigoi/540 no longer exists in law following cancellation of adjudication titles by the Court of Appeal in Nakuru, discharge of all consequential and enforcement orders, and costs. The application was premised on discovery of new and material facts under Order 45 Rule 1, namely a consent order recorded in the consolidated Court of Appeal appeals cancelling titles under the Angata Barigoi Adjudication register. The Respondent opposed the application, arguing that the deponent lacked written authority, that the consent order did not mention the suit parcel, and that a search of 2nd March 2026 confirmed the title still existed in his name. The court framed two issues: whether the application was merited, and who should bear costs. It found the consent order did not mention the suit parcel but referred to Transmara/Moyoi/2, and a search confirmed the suit property's continued existence, making the extinguishment contention a red herring. The alleged new evidence pre-dated the judgment and was within the Applicant's knowledge, being a party to both the Court of Appeal case and this suit, so it was not new. Applying the Court of Appeal's decision in Unigroup Transporters Ltd v Mwasawe, the court held review cannot be used to supplement or introduce new evidence. The consent order, once adopted, became a binding judgment of the Court of Appeal and a judgment in rem under section 44 of the Evidence Act, requiring no review of the lower court's judgment. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Court of Appeal consent order constituted new and material evidence justifying review under Order 45 Rule 1

Holding

No - the consent order dated 14th October 2024 pre-dated the judgment of 19th November 2025 and was known to the Applicant, so it was not new evidence discoverable only after the judgment

Reasoning

Review on discovery of new evidence requires that the evidence could not with due diligence have been produced at the time of the original judgment. The consent order was recorded a year before the judgment, and the Applicant was a party to the Court of Appeal proceedings and to this suit, so he had knowledge of it. It cannot qualify as new evidence and review on this ground fails.

p. 3
02

Whether the consent order extinguished the title to Transmara/Angata Barigoi/540

Holding

No - the consent order does not mention the suit parcel, referring instead to Transmara/Moyoi/2, and a search of 2nd March 2026 confirmed the suit property still exists

Reasoning

The court examined the consent order recorded in the consolidated Court of Appeal appeals and found it did not refer to the suit parcel Transmara/Angata Barigoi/540. A post-application official search showed the title still in existence in the Respondent's name. The Applicant's contention that the title had been extinguished was therefore a red herring and the declaratory relief could not issue.

p. 3
03

Whether any conflict exists between this court's judgment and the Court of Appeal consent order

Holding

None - the consent order, once adopted, became a judgment of the Court of Appeal, binding and a judgment in rem under section 44 of the Evidence Act, so no review of this court's judgment was necessary

Reasoning

Upon adoption, the consent order became a judgment of the Court of Appeal binding on this court and constituting a judgment in rem conclusively determining proprietary rights and title matters. Because such a judgment binds all courts, parties need not seek review of any lower-court judgment that might appear inconsistent; no possibility of conflict arises.

p. 4

Legal principles established

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  • Review on the ground of discovery of new and important evidence must be treated with great caution; the applicant must show the evidence could not have been produced despite due diligence and that review cannot be used to supplement evidence or introduce new evidence.
  • A consent order adopted by the Court of Appeal becomes a judgment of that court, binding on subordinate courts, and constitutes a judgment in rem under section 44 of the Evidence Act.
  • Where a consent order adopted as judgment by the Court of Appeal conclusively determines matters, no party needs to seek review of a lower court judgment that may appear to conflict with it.

Court orders

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  1. 1.The Notice of Motion dated 19th February 2026 seeking review of the judgment delivered on 19th November 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Review jurisdiction under Order 45 Rule 1 of the Civil Procedure Rules

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, "Bor & 8 others v Sang (Land Case Appeal E033 of 2024) [2026] KEELC 4577 (KLR)", Case Analysis (2026). Notice of Motion dated 19th February 2026 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4577/eng@2026-07-20

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