Kamau v Koibita (Environment and Land Case 158 of 2009) [2025] KEELC 6551 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's attempt to overturn an acreage ruling through review, confirming that disagreements belong in appeals, not review applications.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendant has met the threshold for review of this Court's Ruling of 21st November 2023
Key legal issues
#Whether the Defendant demonstrated an error apparent on the face of the record in the acreage computation, sufficient to warrant review under Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules
No error apparent was demonstrated; the ruling of 21st November 2023 considered the Land Registrar and Surveyor's report, and any grievance lay in appeal, not review. The Court is functus officio to refer the matter back to the Land Registrar.
The court reviewed the governing review provisions and relied on authority that review is not a second bite at the cherry and that a wrong conclusion of law is a ground for appeal, not review. It found the Judge of 21st November 2023 had taken into account the Land Registrar and Surveyor's report of 20th September 2023, and that all the survey reports relied on were already on record. The Defendant should have appealed instead of seeking review, and the Court cannot sit in appeal on its own judgment nor reopen the Land Registrar's boundary determination.
Legal principles established
#- A party aggrieved by a ruling who could have appealed cannot resort to review; dissatisfaction with a court's findings is a ground for appeal, not review.
- Under the Land Registration Act, the Land Registrar is mandated to make the first determination of any disputed boundary.
Court orders
#- 1.The Notice of Motion application dated 23rd May 2024 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of the Court's own ruling)
Relief refused
#Review/setting aside of the Ruling delivered on 21st November 2023 by Hon. Lucy N. Mbugua, Judge
The Defendant failed to demonstrate any error apparent on the face of the record; dissatisfaction with the decision is a ground for appeal, not review
Appointment of the Institute of Surveyors of Kenya to compute the acreage of the suit premises' mutation forms and surveyor's report and report to court
The Court held it is functus officio to refer the matter to the Land Registrar again; the Land Registrar is mandated to make the first determination of any disputed boundary
Direction to the District Land Surveyor Kiambu to review the suit premises' mutation forms and surveyor's report and report to court
Same as above — the application did not meet the review threshold and the Court is functus officio
Costs
Application dismissed with costs (costs to the Plaintiff)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the Defendant has not met the threshold set for review as he has failed to demonstrate the alleged error apparent on the face of the record.
I opine that if the Defendant was indeed aggrieved by the order issued on 21st November, 2023, he should have proceeded to lodge an Appeal instead of the instant application for review.
In the circumstances, I find the Notice of Motion application dated the Notice of Motion dated 23rd May 2024 unmerited and will dismiss it with costs.
I note as per the provisions of the Land Registration Act, it is the Land Registrar mandated to make the first determination of any disputed boundary.
Issues in the judgment
#Repetition/duplication error in the disposition sentence: 'the Notice of Motion application dated the Notice of Motion dated 23rd May 2024'
Incorrect citation year in the judgment ('20017') in a party-cited authority
Transcription errors spelling 'functus officio' as 'functus oficio' throughout
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Koibita (Environment and Land Case 158 of 2009) [2025] KEELC 6551 (KLR)", Case Analysis (2025). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6551/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.