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ELCPartially AllowedNot stated in the judgment (Kithimani MCELC No. E019 of 2022 referenced for consolidation)· [2026] KEELC 1216 (KLR)

Tuta & another v Ngoloma (Land Case (Originating Summons) E016 of 2024) [2026] KEELC 1216 (KLR)

Environment and Land Court
3 March 2026
AKA. Y. Koross
1,419 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a partial review of its ruling because it had unknowingly ordered consolidation with a case that had already been decided.

What this practically means

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Executive summary

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This unopposed notice of motion dated 20th October 2025, brought by the defendant under Sections 1A, 3A and 80 of the Civil Procedure Act and Orders 45 and 51 Rule 1 of the Civil Procedure Rules 2010, sought review, setting aside and/or vacating of the ruling and orders issued on 3rd June 2025 and all consequential orders. The impugned ruling had directed that the file in Kithimani MCELC No. E019 of 2022 be provided for consolidation with the present matter. The defendant's ground was that, unknown to the court, the Kithimani matter had already been heard and determined, with judgment delivered on 23rd December 2024, so there was no file capable of transfer or consolidation when the ruling issued. Counsel Mbuvo urged the motion orally on 29th October 2025. The sole issue was whether the motion met the legal threshold for review under Section 80 and Order 45 Rule 1(1). Applying Order 45 Rule 1(1) and adopting the Court of Appeal's decision in Nderitu & 6 others v Assets Recovery Agency [2024] KECA 1612 (KLR), the court held that an applicant must show due diligence and that the new matter is significant enough to alter the outcome. Finding the lower court's judgment was not within the court's knowledge when it reserved ruling, and that the court would not have ordered consolidation had it known, the court allowed the review in part: paragraph 30 of the ruling of 3rd June 2025 was rewritten to record dismissal of the notice of motion dated 11th July 2024 with costs in the cause, a mention was set for pretrial directions, and costs were made costs in the cause. The substantive hearing of the suit was not disturbed.

Key legal issues

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Whether the defendant established sufficient cause for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules

Holding

Yes - the judgment in Kithimani PM ELC No. 19 of 2022 delivered on 23rd December 2024 was new and important matter not within the court's or defendant's knowledge when the ruling of 3rd June 2025 was issued

Reasoning

The court restated the test in Order 45 Rule 1(1): discovery of new and important matter after due diligence, mistake or error apparent on the face of the record, or sufficient reason. Relying on Nderitu & 6 others v Assets Recovery Agency [2024] KECA 1612 (KLR), it held the applicant must show due diligence and significance capable of altering the outcome. The lower court judgment postdated the directions of 11th July 2024 and was unknown to the court; had the court known, it would not have ordered transfer/consolidation of a file already determined.

p. 3

Legal principles established

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  • An applicant for review on the ground of discovery of new and important matter must demonstrate due diligence, that the matter was not within their knowledge, and that it is significant enough to potentially alter the outcome
  • Review may be granted where a new and important matter was not within the court's knowledge when it made the impugned order

Court orders

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  1. 1.The ruling dated 3/06/2025 is reviewed and, in particular, paragraph 30, which is to read that the notice of motion dated 11/07/2024 is hereby dismissed with costs being in the cause
  2. 2.A mention shall be given for purposes of pretrial directions
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Sections 1A, 3A and 80 of the Civil Procedure Act, Cap 21 and Orders 45 and 51 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, "Tuta & another v Ngoloma (Land Case (Originating Summons) E016 of 2024) [2026] KEELC 1216 (KLR)", Case Analysis (2026). Not stated in the judgment (Kithimani MCELC No. E019 of 2022 referenced for consolidation). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1216/eng@2026-03-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.