Oyende v Shaiya (Environment & Land Case 54 of 2018) [2025] KEELC 5210 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether errors apparent on the face of the record were established to warrant review under Order 45 rule 1(b)
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
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.
Whether judgment should be entered for the Plaintiff and the counter-claim dismissed
No - judgment was not entered; the case was re-opened for the evidence of the Land Registrar – Kajiado before a conclusive determination
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.
Legal principles established
#- 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
#- 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.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.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.Parties at liberty to cross-examine the Land Registrar
- 5.Costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.