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ELCDismissedNotice of Motion dated 2nd November 2021 (Application in the main suit - number not stated in judgment)· [2025] KEELC 7815 (KLR)

Sairowua v Olorgeso & 5 others (Environment and Land Case E017 of 2021) [2025] KEELC 7815 (KLR)

Environment and Land Court
12 November 2025
4,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan landowner's review application failed because it was filed 13 months late and merely re-argued the judgment instead of pointing out a clear error.

What this practically means

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Executive summary

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The 2nd Defendant, David Mututo Mumo, applied by Notice of Motion under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules for review of the judgment delivered on 24th October 2023, in which the court (differently constituted) dismissed both the Plaintiff's suit and his counterclaim but directed rectification of the Land Register to reflect the first registration, directing the Land Registrar to include Olkinyei Group Ranch as registered owner. The Applicant argued this was an error apparent on the face of the record because the group ranch had dissolved by 2009 and the late Ntalameya Olorgeso had been registered as proprietor in 2011 per the Green Card; he sought amendment of the register to reflect Ntalameya Olorgeso pending confirmation of grant. The application was supported by an affidavit sworn by his advocate, Victor Ayieko. Only the Plaintiff/Respondent opposed, contending the advocate's affidavit was incompetent, the application was a disguised appeal filed after an unexplained 13-month delay, and that no error apparent was shown since a Notice of Appeal had been filed. The court held an advocate may swear a supporting affidavit, particularly on matters drawn from the court record, provided sources and grounds of belief are stated. On review, it found the judgment was clear that rectification should reflect first registration, which the Green Card showed was to Olkinyei Group Ranch on 10th June 2009; Ntalameya Olorgeso died in 1975 and could not have been first registered owner. The applicant's remedy was an appeal, not review, and the application was also defeated by unexplained inordinate delay. The application was dismissed entirely with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether an advocate on record can swear a supporting affidavit deposing to factual matters

Holding

Yes - an advocate may swear such an affidavit, especially where the deponed facts derive from the court record and the judgment itself; such matters are not contentious

Reasoning

The court held that an advocate may swear an affidavit on contentious matters but must state sources of information and grounds of belief with precision, distinguishing personal knowledge from information received. Victor Ayieko Advocate had been on record during the trial and deponed to facts settled in the judgment and on record, which were within his personal knowledge. Relying on Oriental Commercial Bank Ltd v Shreeji Contractors Ltd, the court found matters drawn from the court record are not contentious, oppressive or scandalous.

p. 7
02

Whether the judgment contained an error apparent on the face of the record warranting review

Holding

No - the court had directed rectification to reflect first registration, and the Green Card showed first registration to Olkinyei Group Ranch on 10th June 2009; registration to Ntalameya Olorgeso in 2011 was not first registration

Reasoning

The applicant alleged the judgment erred in directing registration in the name of Olkinyei Group Ranch, which had dissolved. The court held the judgment was clear that rectification should reflect first registration, which the Green Card showed was to Olkinyei Group Ranch. Moreover, Ntalameya Olorgeso died on 10th October 1975 and could not have been first registered owner; his 2011 registration post-dated his death. The applicant was in truth aggrieved by the holding and should appeal.

p. 8
03

Whether the application was filed without unreasonable delay

Holding

No - filed about 13 months after judgment with no explanation, disqualifying it from review

Reasoning

Judgment was delivered on 24th October 2023 and the application filed on 2nd November 2024, about 13 months later. Review must be sought without unreasonable delay. The delay was long and unexplained. Following Panalpina (E.A) Ltd v Ngae, the court held the application suffered from unexplained inordinate delay and was thus not merited.

p. 8

Legal principles established

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  • An advocate may swear a supporting affidavit on contentious matters provided the sources of information and grounds of belief are stated, and matters drawn from the court record are not contentious
  • A party dissatisfied with a court's holding on the merits must appeal; a review cannot be used as a disguised appeal
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; disagreement with the court's reasoning is not such an error
  • An application for review must be brought without unreasonable delay, and unexplained inordinate delay defeats it even where error is alleged

Court orders

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  1. 1.The Notice of Motion Application dated 2nd November 2024 is dismissed and/or disallowed entirely
  2. 2.Costs of the application to the Plaintiff/Respondent
Jurisdiction invoked
Section 80 of the Civil Procedure Act Cap 21 and Order 45 Rule 1(a) and (b) and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Sairowua v Olorgeso & 5 others (Environment and Land Case E017 of 2021) [2025] KEELC 7815 (KLR)", Case Analysis (2025). Notice of Motion dated 2nd November 2021 (Application in the main suit - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7815/eng@2025-11-12

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