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ELCPartially AllowedNotice of Motion dated 17th December 2024 (arising from plaint dated 17th April 2018)· [2025] KEELC 5210 (KLR)

Oyende v Shaiya (Environment & Land Case 54 of 2018) [2025] KEELC 5210 (KLR)

Environment and Land Court (implied from land dispute; judgment does not state court name)
13 June 2025
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kajiado court set aside its own land judgment due to obvious errors, and will hear the Land Registrar before deciding who owns the disputed land.

What this practically means

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Executive summary

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This ruling determines the Plaintiff's Notice of Motion dated 17th December 2024 seeking review of the court's judgment delivered on 5th November 2024 in a land dispute over the location of the parties' properties, L.R No. Kajiado/Kaputiei-North/17352 and L.R No. Kajiado/Kaputiei-North/5932. The application, brought under Order 45 rule 1(b) of the Civil Procedure Rules, was unopposed despite service. The Applicant alleged three errors apparent on the face of the record: the court stated it had not seen the parties' submissions although they had been filed; the court heavily relied on the evidence of a witness who had admitted he was not a qualified surveyor, rendering the evidence inadmissible under the Evidence Act; and the court mistook the Defendant's exhibits (mutations) for the Plaintiff's. Applying Section 80 of the Civil Procedure Act and Order 45 rule 1(b), and relying on Nyamongo & Nyamongo v Kogo and Mativo J's decision in the Republic v Medical Practitioners & Dentists Board (which adopted the Indian Supreme Court's Aribam Tuleshwar Sharma standard), the court held that these were inadvertent errors that stare one in the face and required no long-drawn reasoning. Review was therefore warranted and the judgment was set aside. However, the court declined to enter judgment for the Plaintiff and to dismiss the counter-claim, instead re-opening the case under section 22B of the Civil Procedure Act to hear the Land Registrar – Kajiado, whose evidence on the parcel files it considered necessary for a conclusive determination. Costs of the application were reserved to the cause.

Key legal issues

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01

Whether errors apparent on the face of the record were established to warrant review under Order 45 rule 1(b)

Holding

Yes - the court identified three errors that 'stare me in the face': submissions were on record though the court stated none were seen; the 'surveyor' whose evidence was heavily relied on was not a qualified surveyor; and the court mistook the Defendant's exhibits as the Plaintiff's

Reasoning

The court applied the established test that an error apparent must be one of inadvertence, evident per se, requiring no lengthy reasoning. The three missteps in the judgment of 5th November 2024 were patent on the record itself, satisfying the threshold in Section 80 of the Civil Procedure Act and Order 45 rule 1(b), and justified setting aside the judgment and re-opening the case for further evidence.

p. 3
02

Whether judgment should be entered for the Plaintiff and the counter-claim dismissed

Holding

No - judgment was not entered; the case was re-opened for the evidence of the Land Registrar – Kajiado before a conclusive determination

Reasoning

Although review was warranted, the court exercised its discretion under section 22B of the Civil Procedure Act to re-open the case rather than enter judgment, holding that evidence from the Land Registrar was needed for a conclusive determination. The parties would be at liberty to cross-examine the Registrar, whose evidence on the parcel files was considered essential.

p. 3

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require a long-drawn process of reasoning; a mere erroneous decision is a ground for appeal, not review

Court orders

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  1. 1.The judgment delivered on 5th November 2024 is set aside (review granted on the ground of error apparent on the face of the record)
  2. 2.The case is re-opened under section 22B of the Civil Procedure Act for purposes of taking the evidence of the Land Registrar – Kajiado
  3. 3.Witness summons to issue for the Land Registrar – Kajiado to appear and produce the parcel files for L.R No. Kajiado/Kaputiei-North/17352 and L.R No. Kajiado/Kaputiei-North/5932
  4. 4.Parties at liberty to cross-examine the Land Registrar
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 22B
  • Civil Procedure RulesOrder 45 rule 1(b)
  • Evidence Act

Cases cited (3)

  • Nyamongo & Nyamongo v Kogo
    [2001] EA 170
  • Republic v Medical Practitioners & Dentists Board & Another & another; MIO1 on behalf of MIO2 [a Minor] & another [Interested Party]; Kingángá [Exparte]
    [Miscellaneous Civil Application 59 & 63 of 2019 [Consolidated]] [2021] KEHC 298 (KLR) (Judicial Review) (16 November 2021) (Ruling)
  • Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal
    [1979] 4 SCC 389: AIR 1979 SC 1047
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1(b) of the Civil Procedure Rules; section 22B 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, "Oyende v Shaiya (Environment & Land Case 54 of 2018) [2025] KEELC 5210 (KLR)", Case Analysis (2025). Notice of Motion dated 17th December 2024 (arising from plaint dated 17th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5210/eng@2025-06-13

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