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ELCDismissedNotice of Motion dated 8th July 2024 in Kisumu ELC No. 146 of 2012· [2025] KEELC 5233 (KLR)

Odera & 6 others (Suing on their own and on behalf of all other members of the Kogony Community claiming registerable interests in the Land known as C/18 Scheme) v Akinyi & 5 others; Oim & 18 others (Interested Party); Otieno & 3 others (Applicant) (Environment and Land Case 146 of 2012) [2025] KEELC 5233 (KLR)

Environment and Land Court
10 July 2025
SOS. Okong'o
4,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu dismissed a landowners' review application because they again failed to attach the title deeds proving ownership.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu disposes of a Notice of Motion dated 8th July 2024 by the 1st and 3rd Applicants seeking review of the court's order of 24th April 2024. In that earlier order, the court had partially set aside its judgment of 18th March 2022 in the main suit, striking out references to parcels owned by the 2nd, 4th and 5th Applicants who had been condemned unheard, but declining the same relief for the 1st and 3rd Applicants because they had not evidenced registered ownership of Kisumu/Kogony/5XX2 and Kisumu/Kogony/5XX6. The Applicants attributed the evidential gap to a mix-up of documents in their advocates' office and annexed the title deeds to the review application. The court, per S. Okong'o J, framed a single issue: whether a valid basis for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(a) had been laid. Applying Francis Origo, Kenya Power v Benzene Holdings, John Kamau Ruhangi and Attorney General v Law Society of Kenya, the court found that the decisive annexures GGNO-2 and GGNO-3 were again missing from the supporting affidavit, leaving the court unable to verify ownership and in the same position as at the earlier ruling. Sufficient cause was therefore not shown, and the application was dismissed with costs to the Plaintiffs. The court also rejected the Plaintiffs' argument that the judicial review decisions in ELC JR Nos. E001, E004 and E005 of 2023 rendered the application superfluous, noting those decisions expressly left determination of title validity to a civil suit.

Key legal issues

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01

Whether the 1st and 3rd Applicants established sufficient cause for review of the order of 24th April 2024

Holding

The application was dismissed because the Applicants failed to produce the title deeds evidencing ownership, the missing annexures leaving the court in the same position as before

Reasoning

The court noted the Applicants claimed the title deeds were omitted owing to a mix-up at their advocates' office, but the affidavit supporting the review application again omitted the crucial annexures GGNO-2 and GGNO-3. Without sight of the title deeds, the court could not find that the Applicants had established registered ownership of Kisumu/Kogony/5XX2 and 5XX6, and thus no sufficient reason for review existed.

p. 8
02

Whether prior judicial review decisions rendered the application superfluous

Holding

The court rejected the Plaintiffs' submission that the JR decisions rendered the application otiose, as the JR court expressly declined to determine title validity with finality

Reasoning

The court reviewed its own statements in ELC JR Nos. E001, E004 and E005 of 2023, where it held that legality of titles can only be determined in a civil suit. Those findings meant the Applicants' right to be heard in Kisumu ELC No. 146 of 2012 was not taken away by the JR decisions.

p. 9

Legal principles established

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  • Sufficient cause for review must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps
  • An erroneous view of law or evidence is a ground of appeal, not a ground of review

Court orders

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  1. 1.The Notice of Motion dated 8th July 2024 is dismissed
  2. 2.Costs of the application to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 80(a), 99
  • Civil Procedure RulesOrder 1 Rule 10(2), Order 22 Rule 22, Order 45 Rules 1 and 1(a), Order 51 Rules 1 and 15
  • Constitution of KenyaArticle 47

Cases cited (4)

  • Francis Origo & another v. Jacob Kumali Mungala
    Eldoret CA No. 149 of 2001 [2005]eKLR
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    Nairobi C.A Civil Appeal No. 132 & 133 of 2014, [2016] KECA 73 (KLR)
  • John Kamau Ruhangi v Kenya Reinsurance Corporation
    Civil Appeal No. 208 of 2006, [2012]eKLR
  • Attorney General v. Law Society of Kenya & another
    [2017]eKLR
Jurisdiction invoked
Sections 1A, 1B, 63(e), 80(a) and 99 of the Civil Procedure Act and Order 45 Rule 1(a) 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, "Odera & 6 others (Suing on their own and on behalf of all other members of the Kogony Community claiming registerable interests in the Land known as C/18 Scheme) v Akinyi & 5 others; Oim & 18 others (Interested Party); Otieno & 3 others (Applicant) (Environment and Land Case 146 of 2012) [2025] KEELC 5233 (KLR)", Case Analysis (2025). Notice of Motion dated 8th July 2024 in Kisumu ELC No. 146 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5233/eng@2025-07-10

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