Mwa v Onyango & 6 others (Environment and Land Appeal E013 of 2024) [2026] KEELC 2007 (KLR)

3. The application is premised on the grounds contained on the face of the application as well as the supporting afidavit of Linet Kisala, the 6th respondent herein. The applicant contended that a general order of injunction restraining her from cultivating the suit land in prejudicial and punitive to her. She averred that this court should allow her application in the interest of justice. 4. In her Supporting Afidavit to the application, the applicant deponed that plaintifi/appellant’s case was dismissed by the trial court on 6th June 2024. The plaintifi /appellant then preferred an appeal before this court. Upon an application, the court issued an order for stay of execution of the decree. The applicant maintained that she is not comfortable with the terms of said orders as granted by the court. she stated that the order restraining her from growing perennial crops would perpetuate hunger and poverty. On this basis, she prayed that the court reviews or amends its ruling so as to ensure that the ends of justice are met. 5. The appellant filed a replying afidavit dated 24th November 2025. She deponed that the applicant’s application was unmerited, brought in bad faith hence the same should be dismissed. She maintained that allowing the said application would render her application nugatory. 6. The appellant further deponed that, on 23th June 2024, she made an application seeking stay of execution against the 6th respondent and her co-respondent. She annexed the said application as annexure marked JAM-1. 7. The appellant further deponed that the court duly considered her application and rendered itself in a ruling fated 5th July 2025 by granting the stay orders as well as maintenance of status quo. She annexed the said ruling in annexure marked JAM-2 8. The appellant also averred that the ruling delivered by the court on 5th July 2025 was not in any way punitive to the 6th respondent. Rather, the same was aimed at preserving the status quo and preventing the respondents from interfering with her peaceful occupation of the suit property. In any event, the appellant maintained that the 6th respondent has already planted maize crop on the suit property despite there being an existing court order prohibiting the applicant’s actions. The appellant thus believed that the instant application was meant to steal the show should the 6th respondent be cited for contempt of court. 9. It was also the appellants deposition that the applicant has never served the instant application and maintained that the said application is an abuse of the due process of court aimed at obtaining court orders through the back door. Issues, Analysis and Determination 10. The relevant issues for determination in the instant application are: whether the applicant’s application is merited, and who should bear the costs of the application. 11. The applicant is seeking a review of the court’s ruling dated 5th July 2025. She averred that the orders of the court mandating the maintenance of status quo, and in particular, the orders barring her from cultivating on the suit property were punitive. 12. The law on review is provided in Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, 2010 as well as judicial precedent. Section 80 of the Civil Procedure Act provides for review in the following terms: “ 80. Review https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2007/eng@2026-02-09 2

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Any person who considers himself aggrieved— 13. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” Order 45 rule 1 sub rule (1) thereof provides as follows: (1) 14. (a) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other suficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. (emphasis added) In Macharia v Principal Secretary Ministry of Education & another (Environment and Land Judicial Review Case 1 of 2021) [2025] KEELC 877 (KLR) (27 February 2025) (Ruling) the court cited the Indian Supreme Court decision in Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at page 608 to elaborate on the scope of review powers. In this latter case, the court held that: “ The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other suficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other suficient reason” ............... means a reason suficiently analogous to those specified in the rule”. 15. I have carefully analyzed the application filed by the applicant as well as the replying afidavit filed by the respondent. The applicant has not specified the ground upon which her application is anchored. She merely stated that the orders of the court are punitive. However, she has not adduced any evidence to demonstrate that her meets the threshold for review provided under Order 45 of the Civil Procedure Rules, 2010. She did not allege that there was new and compelling evidence which she has discovered, and which evidence could not be discovered before the order was granted, even with due diligence. The applicant has not alluded to a mistake on the face of the record. She has not demonstrated a suficient reason to warrant review of the order of the court dated 5th July 2025. Simply put, by an order being punitive it is not an error apparent on the face of record or a new matter that has arisen which was not https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2007/eng@2026-02-09 3

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in the knowledge of the parties at the time of court making the order impugned, or a suficient cause since that cause too has to be analogous to the two limbs already specified in the provisions. 16. The issues raised in the instant application were considered and determined by the court. The respondents alleged that the applicant is already cultivating on the suit land in contempt of the order the applicant now wishes the court to review. In the circumstances, I find that the application raises issues to be determined in another application, if brought before this court. 17. The upshot of the foregoing is that the applicant’s application is without merit and hereby dismissed. The respondents shall have the costs of the application. 18. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 9TH DAY OF FEBRUARY, 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of; E. Awino Advocate for the applicant. Owino Advocate for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2007/eng@2026-02-09 4

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