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ELCPartially AllowedNot stated on the judgment excerpt (application dated 25th November, 2024)· [2025] KEELC 594 (KLR)

Theuri & 6 others v Theuri & another (Environment & Land Case E046 of 2022) [2025] KEELC 594 (KLR)

Environment and Land Court
14 February 2025
1,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court corrected its own eviction order, sparing three plots whose sale was never disputed, showing Kenyan courts will fix obvious errors without requiring an appeal.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the Environment and Land Court at Nakuru by notice of motion dated 25th November, 2024 seeking review of the court's orders of 23rd May, 2024 requiring them to vacate the property known as Shawa/Gicheha Block 12/18 (Kamwango Farmers, Njoro, Nakuru), and in particular exemption of plot number 20 (together with plots 2 and 3) from those orders. Through the affidavit of the 15th Plaintiff, Sheila Midachi, they argued that the judgment had found that only plots 1 and 14-19 were in dispute, and that the definitive orders inadvertently covered the whole parcel including plots 2, 3 and 20, exposing persons whose ownership was undisputed to eviction and rendering them homeless. The 1st Defendant opposed, contending there was no proof of purchase of plots 2, 3 and 20, that Anthony Karimi lacked capacity to transact, and that any disagreement with the court's factual findings was a matter of appeal, not review, relying on authorities including Josiah V Nyaga and Abasi Belinda V Fredrick Kagwamu. The Applicants relied on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, citing National Bank of Kenya Ltd V Ndungu Njau and related authorities. The court, per Antony O. Ombwayo J, framed the sole issue as whether the review application was merited. Noting that its own judgment had recorded the 1st Defendant's confirmation that her late husband completed the sale of plots 2, 3 and 20 and that those sales were never challenged, the court held the inclusion of those plots in the vacatur orders was an error apparent on the face of the record, that eviction would be unfair, and that the 1st Defendant would suffer no prejudice. The court allowed the review, exempting plots 2, 3 and 20 from the vacatur orders, with no orders as to costs.

Key legal issues

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01

Whether the definitive part of the judgment contained an error apparent on the face of the record by including plots 2, 3 and 20 which were not in dispute

Holding

Yes; the judgment itself had found that plots 2, 3 and 20 were never challenged, so ordering vacatur of all plots was an error apparent on the face of the record warranting review.

Reasoning

The court reviewed its own judgment and noted that the 1st Defendant had confirmed her late husband completed the sale of plots 2, 3 and 20, and that the judgment itself appreciated that the sale of those plots was never challenged, with only plots 1 and 14-19 in dispute. Including those plots in the vacatur order was therefore a clear, self-evident error. The court reasoned that evicting owners of plots whose sale was proper and undisputed would be unfair, and that the 1st Defendant would suffer no prejudice if the orders were corrected.

p. 4
02

Whether the applicants satisfied the grounds for review under Order 45 Rule 1(1)

Holding

Yes; the review was merited on the ground of error apparent on the face of the record.

Reasoning

The court set out the statutory grounds for review: discovery of new and important matter or evidence not available despite due diligence, mistake or error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay. Finding that the definitive orders had inadvertently covered plots whose sale was admitted and unchallenged, the court held the error apparent ground was satisfied and reviewed the orders accordingly.

p. 4

Legal principles established

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  • An application for review lies on discovery of new and important matter, or a mistake or error apparent on the face of the record, or any other sufficient reason, without unreasonable delay.
  • Where the court's own judgment confirms that certain plots were never in dispute, it is an error apparent on the face of the record to include those plots in orders requiring vacatur.

Court orders

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  1. 1.The court's orders requiring the Plaintiffs to vacate the property known as Shawa/Gicheha Block 12/18 (Kamwango farmers, Njoro, Nakuru) shall not apply to plot Nos 2, 3 and 20
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (6)

  • National Bank of Kenya Ltd V Ndungu Njau
    [1996] KLR 469
  • John Ngimor & 554 others V Northern Rangelands Trust & 3 Others
    [2021] eKLR
  • Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Josiah V Nyaga
    (Civil Appeal 34 of 2021) [2023] KEHC 2054 (KLR)
  • Abasi Belinda V Fredrick Kagwamu and Another
    [1963] EA
  • Solacher V Romantic Hotels Limited & Another
    (Civil Appeal 167 of 2019) [2022] KECA 771 (KLR)
Jurisdiction invoked
Order 45 Rule 1(1) of the Civil Procedure Rules (with Section 80 of the Civil Procedure Act)

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, "Theuri & 6 others v Theuri & another (Environment & Land Case E046 of 2022) [2025] KEELC 594 (KLR)", Case Analysis (2025). Not stated on the judgment excerpt (application dated 25th November, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/594/eng@2025-02-14

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