Shee v Kamau & 2 others (Environment and Land Case 49 of 2021) [2025] KEELC 7915 (KLR)
The bottom line
#A Kenyan land court wiped out a judgment awarding someone a Kwale plot after buyers uncovered old litigation showing the title history was disputed, and ordered a fresh trial.
What this practically means
#Executive summary
#Key legal issues
#Properly coming on record after judgment under Order 9 Rule 9
The preliminary objection on this ground fails because a consent between the outgoing and incoming advocates predated the filing of the application
Order 9 Rule 9 requires a change of advocate after judgment to be effected by court order or consent. A consent dated 25/09/2024 signed by JWM Law LLP and Njuguna, Kahari & Kiai Advocates was produced, pre-dating the application of 7/10/2024. Non-compliance, if any, is procedural and not fundamental and causes no prejudice, per Tobias M. Wafubwa v Ben Butali.
Whether a withdrawn notice of appeal bars review
A notice of appeal is not an appeal; since the notice was withdrawn, there is no appeal pending and the review application is properly before the court
Section 80 and Order 45 permit review where no appeal has been preferred. Following Multi Choice (Kenya) Ltd v Wananchi Group, a notice of appeal merely evinces intention to appeal and is treated as an appeal only for limited purposes such as stay. The notice was withdrawn under rule 83 of the Court of Appeal Rules, so no appeal was instituted.
Discovery of new and important matter or evidence
The applicants, who were not parties to the prior litigation over the mother title and subdivisions, could not reasonably have been aware of the earlier judgments, rulings and Gazette Notice; the new evidence is prima facie important
The discovered material - the mandamus orders of Wambilyangah J, their setting aside, the struck-out appeals and Gazette Notice No. 5386 of 1994 - arises from litigation to which the defendants were not parties and in which PW2 was a litigant. The court gave them the benefit of doubt on diligence and found the material prima facie important to the history of the suit property, though yet to be fully tested.
Error apparent on the face of the record
No error apparent on the face of the record was established because the alleged error rests on facts that were not before the court during trial
The applicants contended the court conferred a cancelled title on the plaintiff. The court held an error apparent must be self-evident and not require elaborate argument, and that a court cannot make an error in the absence of the full facts said to give rise to it. The contention that the decree exceeded the plaint's prayers was also a matter for appeal.
Legal principles established
#- A notice of appeal is not an appeal for purposes of Order 45; a court has jurisdiction to entertain an application for review where only a notice of appeal has been lodged and subsequently withdrawn
- Compliance with Order 9 Rule 9 after judgment is achieved by a consent between outgoing and incoming advocates; leave of court is only required where there is no such consent
- Review grounds under Order 45 are disjunctive; satisfaction of any one ground suffices
- On review, the court cannot substitute the impugned judgment with dismissal of the suit; new evidence must be tested at a substantive hearing, and setting aside proceedings with a retrial is the appropriate course
Court orders
#- 1.The preliminary objection dated 1st November 2024 is dismissed with no orders as to costs
- 2.The Notice of Motion application dated 7th October 2024 is allowed in the following terms: the Judgement, Decree and all consequential orders issued on 20th September 2024 be and are hereby reviewed
- 3.The entire proceedings and the judgement dated 20th September 2024 with the attendant decree and all consequential orders are set aside
- 4.An order be and is hereby made for a retrial of the entire suit
- 5.Costs of the application shall abide the outcome of the suit upon retrial
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap 21) read with Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shee v Kamau & 2 others (Environment and Land Case 49 of 2021) [2025] KEELC 7915 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7915/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.