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ELCPartially AllowedELC Case No. 361 of 2017

Joy Jenipher Adero Achola & Everlyn Odete Achola (suing as the legal representatives of the Estate of the late Jeckonia Oliver Achola Ndinya) v Kibagendi Robert Otachi, Fredrick Kimemia Kimani, Registrar of Titles Nairobi & Aden Hussein Mahad; Hassan Mohamd Hussein (Interested Party)

Environment & Land Court
1 October 2026
2,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court refused to reopen a land judgment and struck out tribunal orders issued in defiance of that judgment, penalising the parties involved with costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Ochieng J) determined two competing notices of motion arising after the court's judgment of 17 November 2025 in favour of the Plaintiffs, the legal representatives of the estate of the late Jeckonia Oliver Achola Ndinya, in a land dispute against the 4th Defendant, Aden Hussein Mahad. The 4th Defendant sought to bring Oscar Otieno and Co. Advocates on record, and to have the judgment reviewed or set aside with the suit starting afresh, alleging discovery of new evidence and substantial loss from execution, including confiscation of his tenant's goods. The Plaintiffs opposed, contending he had elected to appeal (a Notice of Appeal dated 16 March 2026 being on record), had disclosed no new evidence, and had previously filed a similar application. The Plaintiffs' own application sought removal and striking out of Nairobi BPRT Cause No. E411 of 2026, in which the Interested Party, claiming tenancy under the 4th Defendant, had obtained ex parte orders reinstating himself into the suit property despite the subsisting judgment. The court allowed the change of advocates under Order 9 Rule 9, but refused review, holding there was no error apparent, no new material, and that a party who has appealed cannot simultaneously seek review. Invoking its supervisory jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, and following Lariak Pharmaceuticals, the court held the BPRT orders void ab initio, removed the BPRT reference and struck it out, awarding costs to the Plaintiffs, those of the second application borne personally by the Interested Party.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the firm of Oscar Otieno and Co. Advocates should be allowed to come on record as advocates for the 4th Defendant
  2. 2.Whether the 4th Defendant has satisfied grounds for review and/or setting aside of the judgment delivered on 17th November 2025
  3. 3.Whether Nairobi BPRT Cause No. E411 of 2026 should be struck out (including whether the ELC has supervisory jurisdiction over the BPRT)

Key legal issues

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01

Change of advocates after judgment

Holding

The firm of Oscar Otieno and Co. Advocates was allowed to come on record for the 4th Defendant under Order 9 Rule 9

Reasoning

Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. The court, having considered the provision, exercised its discretion to permit the incoming firm on record so as not to impede the 4th Defendant's right to a hearing.

p. 12
02

Review or setting aside of judgment

Holding

Refused; the 4th Defendant neither identified the new evidence nor showed it was unavailable at trial, and had already filed a Notice of Appeal

Reasoning

Review requires error apparent on the face of the record or discovery of new and important matter not available at trial, and the applicant must not have appealed. The 4th Defendant disclosed no new material, and his erstwhile counsel had filed a Notice of Appeal and sought typed proceedings, evidencing an election to appeal.

p. 14
03

Supervisory jurisdiction over the BPRT and striking out BPRT Cause No. E411 of 2026

Holding

The ELC has supervisory jurisdiction over the BPRT; the BPRT orders were void ab initio and the reference was removed and struck out

Reasoning

Relying on Lariak Pharmaceuticals, the court held supervisory jurisdiction is a sui generis power of superior courts over subordinate courts and tribunals. The BPRT issued break-in and reinstatement orders after being informed of the ELC's subsisting judgment, which it had no capacity to interfere with; the reference could not be used to challenge a competent court's judgment.

p. 17

Legal principles established

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  • A party who has filed an appeal against a judgment cannot simultaneously seek review of the same judgment
  • A subordinate tribunal cannot interfere with a subsisting judgment of a superior court; orders issued in disregard of such judgment are void ab initio
  • The ELC has supervisory jurisdiction over the BPRT under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act

Court orders

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  1. 1.The firm of Oscar Otieno and Co. Advocates allowed to come on record for the 4th Defendant
  2. 2.The 4th Defendant's Notice of Motion dated 17th April 2026 (review/setting aside of judgment) dismissed with costs to the Plaintiffs
  3. 3.Nairobi BPRT Cause No. E411 of 2026 removed into the ELC and struck out
  4. 4.Costs of the Plaintiffs' application awarded to the Plaintiffs, to be borne by Hassan Mohamed Hussein, the named Interested Party

The bench

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

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (supervisory jurisdiction over the BPRT); Section 80 Civil Procedure Act and Order 45 Civil Procedure Rules (review)

Relief refused

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Review and setting aside of the judgment of 17th November 2025 and order that the suit start afresh de novo

No new evidence disclosed; a Notice of Appeal had already been filed; no sufficient cause shown

p. 15

Direction that the Plaintiffs return the 4th Defendant's goods confiscated in execution

Not granted; the review application was dismissed

Costs

4th Defendant's application dismissed with costs to the Plaintiffs; costs of the Plaintiffs' application awarded to the Plaintiffs, to be borne by Hassan Mohamed Hussein, the named Interested Party

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.

I find that it is improper for the 4th Defendant to seek a review and or setting aside of the judgement yet he has already sought an Appeal.
p. 14Election between appeal and review
I opine that the decision the BRPT issued was void ab initio since there was a subsisting judgement. I further find that the BPRT reference cannot be used to challenge a Judgement of a Court of competent jurisdiction.
p. 17Tribunal orders in defiance of subsisting judgment
I will proceed to remove the Nairobi BPRT Cause No. E411 OF 2026 into this Court and strike it out. I will award costs to the Plaintiffs to be borne by Hassan Mohamed Hussein, the named Interested Party herein.
p. 17Final orders - removal and striking out of BPRT reference
I however find the 4th Defendant's Notice of Motion application dated the 17th April 2026 unmerited and will dismiss it with costs to the Plaintiffs.
p. 18Final orders - dismissal of review application

Issues in the judgment

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minor

Interested Party's name spelled inconsistently in the judgment

minor

Plaintiffs' supporting affidavit deponed by '1st Plaintiff' but later refers to 'She states'

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, "Joy Jenipher Adero Achola & Everlyn Odete Achola (suing as the legal representatives of the Estate of the late Jeckonia Oliver Achola Ndinya) v Kibagendi Robert Otachi, Fredrick Kimemia Kimani, Registrar of Titles Nairobi & Aden Hussein Mahad; Hassan Mohamd Hussein (Interested Party)", Case Analysis (2026). ELC Case No. 361 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6034/eng@2026-10-01

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