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ELCDismissedNot stated in judgment (Notice of Motion dated 28th April, 2025)· [2025] KEELC 6782 (KLR)

Bii & 4 others v Cheruiyot (Sued as the Administrator of the Estate of Joseph Kuruiyot Sitienei) & 2 others (Environment and Land Miscellaneous Application E028 of 2024) [2025] KEELC 6782 (KLR)

Environment and Land Court
9 October 2025
CYC. K. Yano
2,495 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowners' review application, confirming you cannot appeal and seek review of the same ruling at the same time.

What this practically means

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Executive summary

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By a Notice of Motion dated 28th April 2025, the applicants (Francis Kiplagat Cheruiyot and others) sought stay, review, variation and setting aside of orders issued on 16th December 2024 by Hon. E. Obaga J, which had directed their eviction from suit properties pursuant to an award of the Kapseret Land Disputes Tribunal adopted in Eldoret CMCC Award No. 8 of 2003. The applicants contended the suit had been filed 21 years after adoption of the award, beyond the 12-year limitation period for enforcing a decree under section 4(4) of the Limitation of Actions Act, and that this non-disclosure constituted an error apparent on the face of the record. The respondents opposed, describing the application as an abuse of process and a delaying tactic, noting the ruling of 16.12.2024 and a subsequent stay application dismissed on 20.03.2025 were never appealed, and that the applicants remained in occupation in contempt. The court, C. K. Yano J, framed a single issue: whether the applicants proved grounds for review under section 80 of the Civil Procedure Act and Order 45 Rule 1. The court found the 2003 award and its adoption were disclosed in both the application and the impugned ruling, so no error apparent on the face of the record existed. The applicants had known of the limitation issue since March-April 2024 and failed to raise it earlier. Their claim of extinguished rights through 50 years' possession was rejected as seeking summary eviction-style relief through the backdoor. The court further noted the applicants had filed a Notice of Appeal dated 18.12.2024 against the same ruling, and review is an alternative to appeal that cannot be pursued concurrently. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether there was an error apparent on the face of the record warranting review of the orders of 16.12.2024

Holding

No error apparent; the 2003 award and its adoption in Eldoret CMCC Award No. 8 of 2003 were disclosed in both the application and the ruling, so there was no non-disclosure or patent mistake

Reasoning

The court examined the application dated 07.06.2024 and the ruling of Hon. E. Obaga J of 16.12.2024 and found both expressly stated that the orders were premised on the award of 05.03.2003 adopted in Eldoret CMCC Award No. 8 of 2003. It was therefore untrue that the limitation point was concealed. The applicants knew of the alleged limitation by March-April 2024 yet failed to raise it in their replying affidavits.

p. 5
02

Whether review is available where a Notice of Appeal has been filed against the same ruling

Holding

Review is an alternative to appeal; the two cannot be pursued concurrently against the same order

Reasoning

Order 45 Rule 1(a) limits review to a person aggrieved by an order from which an appeal is allowed but from which no appeal has been preferred. Since the applicants filed a Notice of Appeal dated 18.12.2024 against the entire ruling of 16.12.2024, they cannot simultaneously seek review of the same ruling.

p. 5

Legal principles established

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  • An error apparent on the face of the record must be an obvious and patent mistake, not one established by a long drawn process of reasoning on which two opinions may be held
  • Review and appeal are alternative remedies and cannot be pursued concurrently against the same order

Court orders

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  1. 1.The Notice of Motion dated 28th April, 2025 is dismissed with costs to the applicants/respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50 and 159
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1; Order 45 Rule 1(a); Order 37
  • Limitation of Actions ActSection 4(4)
  • Land ActSection 152

Cases cited (4)

  • Sanitam Services (E.A.) Limited V Rentokil (K) Limited & Another
    (2019) eKLR
  • Chandrakhant Joshibhai Patel -v- R
    [2004] TLR, 218
  • Shah v Mbogo
    (1967) EA 116
  • Cheruiyot (Suing as the legal administrator of the Estate of Joseph Kiruiyot Sitienei vs Ruto & 2 Others
    (Environment & Land Case No. 105 of 2020) [2023] KEELC 17205 (KLR) (16th March 2023) (Judgment)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Bii & 4 others v Cheruiyot (Sued as the Administrator of the Estate of Joseph Kuruiyot Sitienei) & 2 others (Environment and Land Miscellaneous Application E028 of 2024) [2025] KEELC 6782 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 28th April, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6782/eng@2025-10-09

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