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ELCDismissedNot stated on the extract provided· [2025] KEELC 7862 (KLR)

Choge & 2 others v Kirwa & another (Environment and Land Case 93 of 2014) [2025] KEELC 7862 (KLR)

Environment and Land Court
13 November 2025
3,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (Yano J) on the Defendants/Applicants' Notice of Motion dated 24th March 2025 seeking review, variation and/or vacation of a contempt ruling delivered on 19th December 2024, together with a stay of subsequent execution and consequential orders. The Defendants, who had been found in contempt of court orders concerning the suit property Plateau/Kipkabus Block 4(LELMOKWO)/24, argued that newly discovered evidence - a letter from the County Surveyor dated 10th February 2025 - showed there were no established boundaries between their land and the suit property, rendering the orders ambiguous and unenforceable and the contempt finding unjust. They relied on Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution. The Plaintiffs opposed, maintaining the Defendants invaded the land in 2005 and destroyed boundaries, and that the Defendants lacked capacity to pursue a boundary dispute as the land remained registered under the Government of Kenya. The court framed two issues: whether a case for review was made out, and costs. It held that the Surveyor's letter referred to 're-establishing' boundaries per the Registry Index Map, disproving the allegation that no boundaries existed; the Applicants showed no due diligence; the application was filed after unreasonable delay, inordinate given the liberty implications; and the remaining grievances (standard of proof, executability, absence from the hearing) were grounds of appeal, not review, and entertaining them would amount to sitting on appeal over the ruling. The application was dismissed with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether discovery of new evidence justified review of the contempt ruling

Holding

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.

Reasoning

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.

p. 5
02

Whether the court could reconsider the merits of the contempt finding, the standard of proof, and executability of the orders

Holding

No; those are matters for appeal, not review, and considering them would amount to sitting on appeal over its own ruling.

Reasoning

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.

p. 5
03

Whether the application was filed without unreasonable delay

Holding

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.

Reasoning

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.

p. 6
04

Who bears the costs of the application

Holding

The Plaintiffs/Respondents, as costs follow the event under Section 27 of the Civil Procedure Act.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Defendants/Applicants' Notice of Motion Application dated 24th March, 2025 is dismissed.
  2. 2.The Plaintiffs/Respondents shall have the costs of the Application.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 27
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (13)

  • Republic vs Public Procurement Administrative Review Board & 2 Others Ex-Parte Syner-Chemie Limited
    (2016) eKLR
  • Francis Origo & Another vs Jacob Kumali Mungala
    (2005) eKLR
  • Gatharia K. Mutikika vs Baharini Farm Ltd
    (1985) KLR 227
  • Samuel M. N. Mweru & Others vs National Land Commission & 2 Others
    (2020) eKLR
  • Republic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    (2019) eKLR
  • D. J. Lowe & Company Limited vs Banque Indosuez
    (1998) KECA 108 (KLR)
  • Nyamunga vs Ndeda & 3 others
    (Environment & Land Case E030 of 2022) [2023] KEELC 16967 (KLR)
  • Stephen Githua Kimani vs Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Evan Bwire vs Andrew Nginda
    Civil Appeal No. 103 of 2000, Kisumu; (2000) LLR 8340
  • Jaber Mohsen Ali & Another vs Priscillah Boit & Another
    (2014) eKLR
  • Christopher Kendagor vs Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    (2014) eKLR
  • Thomas Kirwa & Abraham Rotich vs Abraham Kiprop Choge, Nelson Kipyego Choge & Elphas Kipchirchir Choge
    Eldoret Court of Appeal Civil Application No. E063 of 2023
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

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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, "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.