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ELCDismissedNot stated in the ruling (application dated 6/11/2025 arising from a suit filed by plaint dated 19/6/2017)· [2026] KEELC 511 (KLR)

Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2026] KEELC 511 (KLR)

Environment and Land Court
4 February 2026
1,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By an application dated 6/11/2025, the plaintiff, through her advocate Carolyn Mafutu, sought review of the ELC judgment delivered on 23/7/2025, alleging errors apparent on the face of the record in paragraph 52 - namely that the judgment simultaneously directed the defendants to vacate the suit land while exempting the 2nd defendant from vacating the portion belonging to his family, making it impossible to extract an executable decree. The application was anchored on Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, with the plaintiff additionally invoking Section 99 (slip rule). The court surveyed the case law defining an error apparent on the face of the record - one that is self-evident, requires no elaborate argument, and whose correction must not alter the substance of the judgment - and reiterated that review is exercised sparingly, cannot be used by a losing party to re-litigate, and cannot permit a court to sit on appeal over its own judgment. Re-examining the original judgment, the court found it had specifically held the suit land to be communal/ancestral land under Article 63(2)(d) of the Constitution and the Community Land Act, that individual entitlement could not supersede community title, and that the plaintiff, bearing the burden of proof under Section 107 of the Evidence Act, had failed to prove sole ownership. Paragraph 52 merely recorded the failure of the plaintiff's claim. The court concluded the plaintiff was 'reading the judgment upside down'; her complaints were grounds of appeal, not review, and the application was also filed after more than four months' delay. The application was dismissed with no orders as to costs on 4/2/2026 (C.K. Nzili J, ELC Kitale).

Key legal issues

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01

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

Holding

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

Reasoning

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'.

p. 3
02

Whether review could be used to re-litigate the suit or obtain a decree for the plaintiff

Holding

Review is exercised sparingly; it cannot be used by a losing party to re-open a matter or alter the substance of a judgment

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application for review dated 6/11/2025 is dismissed
  2. 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

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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, "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.