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ELCDismissedNot stated on the face of the judgment

Kamau v Koibita (Environment and Land Case 158 of 2009) [2025] KEELC 6551 (KLR)

Environment and Land Court
2 October 2025
1,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a ruling dated 21st November 2023, the Court ordered that 0.024 acres be excised from the Defendant's parcel LR Kiambaa/Karura/T.624 and incorporated into the Plaintiff's parcel LR Kiambaa/Karura/T.623. The Defendant, Andrew Njogu Gachoka, Advocate, then filed a Notice of Motion dated 23rd May 2024 seeking review or setting aside of that ruling on the ground of an alleged error in the computation of the acreage in the Land Registrar's and Surveyor's report dated 20th September 2023, contending the Judge failed to consider previous survey reports and that execution would result in the demolition of his residential houses and perimeter wall. He further sought appointment of the Institute of Surveyors of Kenya and a review by the District Land Surveyor Kiambu. The Plaintiff opposed, arguing the Court had enforced the joint findings of the Land Registrar and District Land Surveyor and was therefore functus officio, and that the application was a disguised appeal from a concluded matter, with all the survey reports relied on having been on record before the ruling. In a ruling delivered at Nairobi on 2nd October 2025, Christine Ochieng, Judge, framed a single issue: whether the Defendant had met the review threshold under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Applying Supreme Court and Court of Appeal authority that review is not a second bite at the cherry and that a wrong conclusion is a ground for appeal, the court found no error apparent on the face of the record, held the Court functus officio to refer the matter back to the Land Registrar, and dismissed the application with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Defendant has met the threshold for review of this Court's Ruling of 21st November 2023

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 23rd May 2024 is dismissed with costs

The bench

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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

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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

p. 4

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

p. 4

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

p. 4

Costs

Application dismissed with costs (costs to the Plaintiff)

Quotable passages

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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.
p. 4Review threshold not met
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.
p. 4Appeal, not review, is the remedy
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.
p. 4Final orders
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.
p. 4Boundary disputes — role of Land Registrar

Issues in the judgment

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minor

Repetition/duplication error in the disposition sentence: 'the Notice of Motion application dated the Notice of Motion dated 23rd May 2024'

minor

Incorrect citation year in the judgment ('20017') in a party-cited authority

minor

Transcription errors spelling 'functus officio' as 'functus oficio' throughout

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, "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.