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ELCDismissedELC Case No. E007 of 2024 (OS) [Kericho]· [2025] KEELC 7425 (KLR)

Kones v Sambut Tea Limited & 2 others (Sued as the Administrators of the Estate of the Late Kipkalya Kiprono Kones (Deceased)) (Enviromental and Land Originating Summons E007 of 2024) [2025] KEELC 7425 (KLR)

Environment and Land Court
30 October 2025
5,602 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho (L. A. Omollo J) on the Plaintiff/Applicant's Notice of Motion dated 18th October 2024 in an adverse possession suit commenced by Originating Summons dated 20th March 2024 over 116 acres hived off LR No. 9932/3. The Applicant sought entry into the suit property to collect tools and personal belongings, review of the status quo orders issued on 26th September 2024 to allow plucking of tea, and an order that Kaisugu Tea Limited deposit the proceeds of green leaf sales less expenses in Court or a joint interest-earning account. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act rather than Section 80 of the Act and Order 45 Rule 1 of the Civil Procedure Rules. The court held that wrong invocation of provisions is a curable procedural technicality and considered the application on its merits. However, it found that the Applicant's complaint - that the court failed to consider the perishable nature of tea bushes when issuing status quo orders - was an appellate grievance, not a ground for review, and no sufficient reason for review was demonstrated. The claim for recovery of tools failed because the existence of such items was disputed and unproven, and the relief against Kaisugu Tea Limited failed because that company is not a party to the proceedings. The application was dismissed with costs under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Court should review its status quo orders of 26th September, 2024

Holding

The application, though brought under the wrong provisions (Sections 1A, 1B, 3A of the Civil Procedure Act instead of Section 80 and Order 45 Rule 1), was considered on its merits since wrong invocation is a curable technicality; but the Plaintiff demonstrated no sufficient reason for review. His grievance that the Court failed to consider the unique nature of tea bushes is an appellate complaint, not a review ground.

Reasoning

The court reviewed Section 80 and Order 45 Rule 1 and the grounds for review. The Applicant invoked the third limb of 'any other sufficient reason', which need not be analogous to the other grounds. However, his actual complaint is that the Court erred in failing to consider the perishable nature of tea bushes when issuing status quo orders. Such dissatisfaction with the reasoning of the earlier ruling is a ground for appeal, not review, so the threshold was not met.

p. 11
02

Whether the Plaintiff should be allowed to access the suit parcel to collect his items, tools and personal belongings

Holding

Refused, because the existence of such items on the parcel is disputed and the Applicant did not demonstrate that any tools remain there.

Reasoning

The 2nd Defendant deposed that the Plaintiff used her farm tools and left nothing when removed in 2021, so the existence of the Plaintiff's items on the parcel is disputed. Applying the principle that court orders cannot issue in a vacuum and good cause must be established, the court found the Applicant had not demonstrated the existence of the items, and declined the relief.

p. 11
03

Whether Kaisugu Tea Limited should deposit proceeds of green leaf sales in Court or a joint account

Holding

Not determined on merits since the review failed; in any event no orders can issue against Kaisugu Tea Limited as it is not a party to the proceedings.

Reasoning

Neither Respondent addressed the issue in submissions, and the court's finding against review rendered the question academic. Additionally, the relief was directed against Kaisugu Tea Limited, a non-party, and the court relied on authority that orders cannot be made against persons who are not parties and have not been heard.

p. 12
04

Costs

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; the dismissed Applicant to bear the Respondents' costs.

Reasoning

The court invoked the general rule that costs follow the event under Section 27 of the Civil Procedure Act (Cap. 21), meaning a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. No such reason existed, so costs were awarded to the Defendants/Respondents.

p. 12

Legal principles established

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  • Reliance on the wrong provisions of the law is a procedural technicality which the Court can overlook for the sake of substantive justice, provided there is no bad faith, misleading or prejudice.
  • Review lies only on the grounds of discovery of new and important matter or evidence, error apparent on the face of the record, or any other sufficient reason, and without unreasonable delay.
  • A party who believes the Court reached the wrong conclusion should appeal, not seek review, which is limited in scope.
  • The Court cannot issue orders against persons or entities who are not parties to the case.
  • Court orders cannot issue in a vacuum; good cause must first be established to attract relief.

Court orders

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  1. 1.The Plaintifi/Applicant's application dated 18th October, 2024 is dismissed
  2. 2.Costs of the application to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Environment and Land Court ActSection 13
  • Practice Directions of the Environment and Land CourtPractice Direction No. 28(k), Gazette Notice No. 5178 dated 25th July, 2014
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (18)

  • Sylvester Nthenge v Johstone Kiamba Kiswili
    [2021] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 Others
    [2018] eKLR
  • Shanzu Investments Limited vs Commissioner for Lands
    Civil Appeal No. 100 of 1993
  • Samba t/a JO Samba & Co Advocates v Mengich
    (Miscellaneous Application 7 of 2022) [2023] KEHC 26997
  • Muswii v David & 6 Others
    (Environment & Land Case No. 76 of 2018) [2024] KEELC 5919 (KLR)
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Mumo Matemu vs Trusted Society of Huma Rights Alliance & 5 Others
    Civil Appeal No. 290 of 2012
  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • The Registered Trustees of the Archdiocese of Dar es Salaam versus Chairman of Bunju Village Government & Others
    Civil Appeal No. 47 of 2006
  • Thomas Ratemo Ongeri & 2 others v Zachariah Isaboke Nyaata & another
    [2014] KEHC 6773 (KLR)
  • NANCY NYAMIRA & ANOTHER V ARCHER DRAMOND MORGAN LTD
    [2012] KEHC 5452 (KLR)
  • Salume Namukasa v Yozefu Bukya
    (1966) EA 433
  • Gitau v Muriuki
    [1986] KLR 211
  • Board of Trustees National Social Security Fund v Micheal Mwalo
    [2015] KECA 782 (KLR)
  • Sandar Mohamed v. Charan Singh
    [1959] EA 793
  • Omote & another v Ogutu
    (Civil Appeal E005 of 2021) [2022] KEHC 16441 (KLR)
  • Transeast Limited v Trident Insurance Company Limited; Michael Mutunga & John Katuta Mustisya (Interested Party)
    [2021] KEHC 1685 (KLR)
  • Ruth Wanja Mwangi v Samuel Mwaura Njuguna, Naivasha Land Registrar & Attorney General
    [2017] KEELC 2451 (KLR)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (application); underlying suit by Originating Summons for adverse possession

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, "Kones v Sambut Tea Limited & 2 others (Sued as the Administrators of the Estate of the Late Kipkalya Kiprono Kones (Deceased)) (Enviromental and Land Originating Summons E007 of 2024) [2025] KEELC 7425 (KLR)", Case Analysis (2025). ELC Case No. E007 of 2024 (OS) [Kericho]. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7425/eng@2025-10-30

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