Tormoi v Koros & 3 others (Civil Application E012 of 2022) [2025] KECA 844 (KLR)
The bottom line
#The Court of Appeal refused to change its earlier ruling that a land claimant won only 0.3 acres, not 14, confirming that losing parties cannot use review to re-argue their case.
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 laid a good basis for the review of the judgment of this Court delivered on 13th May 2022
- 2.Whether there is an apparent error on the face of the record capable of correction on review
Key legal issues
#Whether the residual jurisdiction to review a judgment of the Court of Appeal was properly invoked
The application failed: the applicant merely re-asserted her claim to 14 acres rather than demonstrating an apparent error on the face of the record.
The court reviewed the Benjoh Amalgamated, Wambora and Ndungu Njau authorities on review. Under them, review requires a self-evident error apparent on the face of the record, not re-argument of the merits. The lead judgment of Tuiyott JA had analyzed the evidence and deliberately found possession of only 0.3 acres to be exclusive. The applicant's grounds and affidavit were scant and amounted to lamentation by a dissatisfied litigant. Accordingly, the functus officio principle prevailed and the residual jurisdiction was not available.
Whether the reduction of the award from 14 acres to 0.3 acres was an apparent error on the face of the record
No: the finding of 0.3 acres was clear, deliberate and unambiguous, being the result of a re-evaluation of evidence, not a clerical or mathematical error.
The impugned judgment's lead decision expressly re-evaluated the evidence, found possession of the remainder was neither peaceful, exclusive nor uninterrupted because the appellants also used the land, and concluded the respondent had not established adverse possession beyond 0.3 acres. A change from 0.3 to 14 acres would be a substantive alteration of the findings, not correction of a misstatement. Counsel for the respondents correctly noted this is not a clerical error.
Legal principles established
#- A Court of Appeal may exercise residual jurisdiction to review its own decision only in the clearest of cases and in cases not appealable to the Supreme Court
- After judgment a court becomes functus officio and cannot revisit its own judgment on its merits unless provided by law
- An error on the face of the record must be self-evident and not require elaborate argument; disagreement with the outcome or an erroneous conclusion of law is not a ground for review
- Review is not a second appeal and cannot be used to re-argue the merits
Court orders
#- 1.The Notice of Motion application for review is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (the court's own prior judgment) - underlying trial decision was the Environment & Land Court at Eldoret (Odeny, J.)
- Civil Appeal No. 36 of 2018; Eldoret ELC No. 571 of 2012
- Jurisdiction invoked
- Article 50 of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 35 and 47 of the Court of Appeal Rules (inherent/residual jurisdiction to review the court's own judgment)
Relief refused
#Stay of execution of the judgment of 13th May 2022 pending hearing and determination of the application
The application was dismissed in its entirety as unmeritorious
Review of the judgment of 13th May 2022 and the decree correcting the acreage from 0.3 acres to 14 acres
No apparent error on the face of the record was demonstrated; the finding of 0.3 acres was clear and unambiguous; review is not a second bite at the cherry
Costs
Application dismissed with costs to the respondents.
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.
Consequently, it is hereby dismissed with costs to the respondents.
after passing judgment, a Court becomes functus oficio. The efiect of this position in law is that in the circumstances, a Court cannot purport to revisit its own judgment on its merits or exercise a judicial power over the same matter unless provided by law.
The applicant has not satisfied us that there is any apparent error on the face of the record. On the contrary the finding that the applicant is only entitled to 0.3 acres by way of adverse possession is clear and unambiguous.
An application for review is not a further appeal where a party tries to take a second bite at the cherry.
this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court).
Issues in the judgment
#The judgment does not name the parties in its heading; the applicant and respondents are identified only indirectly (supporting affidavit of VKT; 2nd respondent's replying affidavit), so party names and case title are inferred
The applicant's own notice of motion misstates the acreage sought, referring to '3 Acres rather than 14 Acres', an internal inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tormoi v Koros & 3 others (Civil Application E012 of 2022) [2025] KECA 844 (KLR)", Case Analysis (2025). Notice of Motion seeking review of Civil Appeal No. 36 of 2018 (judgment of 13th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/844/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.