Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2026] KEELC 511 (KLR)
The bottom line
#A Kenyan landowner who lost her case could not use review to change the outcome, because disagreements with a judgment belong on appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged errors in paragraph 52 of the judgment constituted errors apparent on the face of the record justifying review under Order 45 and Section 80
No error apparent on the face of the record existed; the alleged mistakes were in truth disagreements with the merits of the judgment, which are grounds of appeal, not review
The court re-examined its judgment and found it had made specific findings that the suit land was communal/ancestral land under Article 63(2)(d) of the Constitution and Section 12 of the Community Land Act, could not be decreed individually to the plaintiff, and that the plaintiff bore the burden of proof under Section 107 of the Evidence Act despite the defendants not testifying. Paragraph 52 merely concluded that the plaintiff's claim to sole ownership had failed. Reading the judgment as allowing the suit was 'reading the judgment upside down'.
Whether review could be used to re-litigate the suit or obtain a decree for the plaintiff
Review is exercised sparingly; it cannot be used by a losing party to re-open a matter or alter the substance of a judgment
Relying on Hussein Khalid and related authorities, the court reaffirmed finality of decisions, functus officio, and that review should not alter the decision except in deserving cases. The application was also brought after more than four months, well beyond the expectation of inordinate delay for review applications.
Legal principles established
#- An error apparent on the face of the record is one that is self-evident, requires no elaborate argument or long-drawn reasoning, and its correction must not change the substance of the judgment
- The slip rule does not permit a court to sit on appeal over or extensively review its own judgment
- A good ground of appeal may not necessarily be a good ground for review; review must be sought without inordinate delay
- Parties are bound by their pleadings
Court orders
#- 1.The application for review dated 6/11/2025 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules as read together with Section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2026] KEELC 511 (KLR)", Case Analysis (2026). Not stated in the ruling (application dated 6/11/2025 arising from a suit filed by plaint dated 19/6/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/511/eng@2026-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.