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ELCAllowedNot stated in judgment· [2025] KEELC 3259 (KLR)

Kamakil v Korir & another (Environment & Land Case E018 of 2024) [2025] KEELC 3259 (KLR)

Environment and Land Court
19 March 2025
2,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya court changed a land possession order after learning a government official had been misled about who actually occupied the plot.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (Nyagaka, J) delivered on 19th March 2025 on an application by the 1st Defendant, Elijah Kiptanui Korir, seeking review of status quo orders made on 8th May 2024 over plot No. 549 in the Chepchoina Phase II Settlement Scheme. The original orders, founded on testimony of the Area Assistant Chief, had affirmed the Plaintiff as being in possession pending hearing of the main suit. The 1st Defendant alleged the Assistant Chief had misled the court, and after a complaint lodged with the County Commissioner, a ground report dated 14th May 2024 indicated the 1st Defendant had been in occupation from 2023. The Plaintiff opposed the review, arguing the application failed the Section 80 Civil Procedure Act and Order 45 Rule 1 threshold, that the 1st Defendant failed to cross-examine the Assistant Chief, and that the Defendant was in contempt of the orders and should not be rewarded for disobedience. The court summoned the Assistant Chief, who clarified he had never personally visited the land before testifying and had been misled regarding occupation; he confirmed Selly Cherop, the 1st Defendant's lessee, had been in possession since 2021. Holding that this amounted to discovery of new and important matter, the court found the review merited, declared the 1st Defendant and/or his agents the party in possession as at 8th May 2024 to remain in occupation until the suit is determined, directed mention on 3rd April 2025, and ordered the Plaintiff to bear the costs of the application.

Key legal issues

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01

Whether the 1st Defendant met the threshold for review under Section 80 CPA and Order 45 Rule 1 CPR

Holding

The application met the 'discovery of new and important matter' ground: the Assistant Chief's clarification that he had never visited the suit land and had been misled established that the court's 8th May 2024 possession finding was based on incorrect information.

Reasoning

The court reconsidered the basis of its 8th May 2024 status quo order, which rested on testimony of the Area Assistant Chief that the Plaintiff was in possession. Upon being summoned, the Assistant Chief clarified he had been misled, had not personally visited the land, and later produced a report confirming the 1st Defendant (through his lessee) was in possession since 2021. The court held this was new and important matter not within the witness's knowledge when the order issued, satisfying Section 80 and Order 45 Rule 1, and that correcting the error served the interest of justice.

p. 6
02

The sanctity of court orders

Holding

Courts punish contempt to uphold their dignity and the rule of law; orders must be respected, but this principle did not defeat review where the underlying order rested on misinformation.

Reasoning

Citing Kenyan, South African, Canadian and other authorities, the court affirmed that obedience to court orders underpins the rule of law. However, on the facts the Plaintiff, through his agents, had misled the Assistant Chief, so the 1st Defendant's application was not an attempt to sanitize disobedience but a legitimate request to correct an error. The court found the Plaintiff was seeking to have the 1st Defendant punished for holding a factually incorrect position that the Plaintiff himself had created.

p. 6

Legal principles established

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  • Misrepresentation to the court by a witness, resulting in orders based on incorrect facts, may constitute discovery of new and important matter justifying review.
  • Court orders must be obeyed to preserve judicial authority and the rule of law.

Court orders

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  1. 1.The status quo orders of 8th May 2024 remain in place, with the party in possession as at 8th May 2024 being the 1st Defendant and/or his agents, declared the rightful person in occupation of the suit land until the case is heard and determined
  2. 2.Mention on 3rd April 2025 for further directions
  3. 3.The Respondent (Plaintiff) to bear the costs of the Application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Act (Civil Procedure Rules)Order 45 Rule 1(1)
  • Civil Procedure ActSection 27
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 160

Cases cited (7)

  • Alpha Fine Foods Limited v Horeca Kenya Limited & 4 Others
    [2021] eKLR
  • Omote & Another v Ogutu
    (Civil Appeal E005 of 2021) [2022] KEHC 1644 (KLR)
  • Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another
    CCT 19/11(75/2015)
  • Canadian Metal Co. Ltd v Canadian Broadcasting Corp (No. 2)
    [1975] 48 D.LR(3d)
  • Carey v Laiken
    [2015] SCC 17
Jurisdiction invoked
Section 80 of the Civil Procedure Act and 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, "Kamakil v Korir & another (Environment & Land Case E018 of 2024) [2025] KEELC 3259 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3259/eng@2025-03-19

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