Choge & 2 others v Kirwa & another (Environment and Land Case 93 of 2014) [2025] KEELC 7862 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to undo a contempt ruling, confirming that disagreements with a decision belong on appeal, not in review applications.
What this practically means
#Executive summary
#Key legal issues
#Whether discovery of new evidence justified review of the contempt ruling
No. The letter from the County Surveyor referred to 're-establishing' boundaries, disproving the claim that no boundaries existed; the information was available to the Applicants at the time of the ruling.
The court found the suit property is registered with a title, so boundaries existed at demarcation. The Survey Office letter scheduled a re-establishment exercise per the Registry Index Map, confirming boundaries already existed. The Applicants showed no due diligence efforts to obtain this information earlier, and the Respondents explained the surveyor was invited to restore boundaries destroyed by the Defendants' 2005 invasion and ploughing.
Whether the court could reconsider the merits of the contempt finding, the standard of proof, and executability of the orders
No; those are matters for appeal, not review, and considering them would amount to sitting on appeal over its own ruling.
The Defendants participated in the hearing that produced the contempt ruling and should have raised those issues then. Re-admitting evidence and reconsidering the contempt elements would convert the review into an appeal or a fresh hearing of the application, which the law on review does not permit.
Whether the application was filed without unreasonable delay
No; the application filed on 24th March 2025, three months after the 19th December 2024 ruling, was unreasonably delayed given the liberty implications of contempt findings.
The Applicants were to appear for sentencing following the contempt finding. Given the implications for their liberty, even one day's delay could be inordinate in such circumstances, following Jaber Mohsen Ali v Priscillah Boit. The Applicants did not explain when they learnt of the Survey Office letter.
Who bears the costs of the application
The Plaintiffs/Respondents, as costs follow the event under Section 27 of the Civil Procedure Act.
Costs are discretionary but ordinarily follow the event, awarded to the successful party. The Applicants, having failed to demonstrate entitlement to the orders sought, must bear the costs in favour of the successful Respondents, per Jasbir Singh Rai v Tarlochan Singh Rai.
Legal principles established
#- Mere discovery of new or important evidence is not a sufficient ground for review; the applicant must show the evidence was not obtainable with due diligence when the order was made.
- An application for review whose effect is to re-open a case afresh exceeds the court's jurisdiction on review.
- Where the subject of review affects a party's liberty, even a short delay may be inordinate.
- A party aggrieved by a ruling on contempt must raise grievances on appeal, not by way of review.
Court orders
#- 1.The Defendants/Applicants' Notice of Motion Application dated 24th March, 2025 is dismissed.
- 2.The Plaintiffs/Respondents shall have the costs of the Application.
- Jurisdiction invoked
- Sections 80 and 63(e) of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Choge & 2 others v Kirwa & another (Environment and Land Case 93 of 2014) [2025] KEELC 7862 (KLR)", Case Analysis (2025). Not stated on the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7862/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.