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ELCDismissedNot stated in the excerpt (Kajiado ELC suit, application dated 2nd February 2026)· [2026] KEELC 2099 (KLR)

Makat & 2 others (Suing as the Personal Representatives of ohe Estate of Pulei Markat Deceased) v Oloyionte & 2 others (Environment and Land Case E017 of 2025) [2026] KEELC 2099 (KLR)

Environment and Land Court
16 April 2026
2,479 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to revisit its earlier land ruling, confirming that disagreements with a judge's reasoning belong in an appeal, not a review application.

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 Kajiado on a notice of motion by the 1st Defendant seeking review, setting aside or variation of the court's ruling of 27th November 2025, in which the court had dismissed his preliminary objection on the basis, per Oraro vs Mbaja, that the matters raised (including sub judice as against the earlier suit Kajiado ELC No. 52 of 2020) required evidence and could not be determined as a preliminary objection. The Applicant invoked section 80 of the Civil Procedure Act and Order 45 rule 1, arguing an error apparent on the face of the record and material non-disclosure of the earlier suit. The Plaintiffs/Respondents opposed, contending the application was filed 77 days late, was a backdoor appeal, and that the earlier suit had been struck out on a technicality. The court framed a single issue: whether the application met the threshold for review. Applying the established grounds of review, it held there was no error apparent on the face of the record because the court had deliberately declined to determine sub judice in a preliminary objection; dissatisfaction with that interpretation lies in appeal, not review. The alleged new matter (insufficiency of the Plaintiffs' grant ad litem) was not part of the preliminary objection and cannot be introduced on review. Further, a delay of 38 days (after excluding the vacation period under Order 50 rule 4) was inordinate and unexplained. The application was dismissed with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether there is an error apparent on the face of the record in the ruling of 27th November 2025

Holding

No error apparent on the face of the record; the court deliberately declined to determine sub judice in a preliminary objection because it required probing of evidence

Reasoning

The Applicant argued the ruling was defective for failing to address the earlier suit Kajiado ELC No. 52 of 2020. The court held that issues of res judicata, duplicity and sub judice require probing of evidence and cannot be handled as preliminary objections. The court consciously declined to determine sub judice for that reason, and dissatisfaction with that interpretation lies in appeal, not review.

p. 4
02

Whether there was discovery of new and important matter or evidence

Holding

No; the alleged new ground (insufficiency of the grant) was not part of the preliminary objection and was within the Applicant's knowledge earlier

Reasoning

The Applicant claimed the Plaintiffs' grant did not permit them to sue for the estate. The court noted this point was not among the grounds of the preliminary objection, and that review on discovery requires matter not known or producible despite due diligence at the time of the order. Review cannot be a vehicle for fresh grounds or a fresh hearing of arguments.

p. 5
03

Whether the application was filed without undue delay

Holding

A delay of 38 days was inordinate in the circumstances and not sufficiently explained by the Applicant's age of 82 years

Reasoning

The application was filed 77 days after the ruling; even excluding the court vacation period under Order 50 rule 4, the Applicant admitted 38 days. Applying the test for inordinate delay, the court found 38 days excessive compared to normality and the explanation of advanced age unreasonable, so the application also failed the requirement of being made without undue delay.

p. 5

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require long-drawn reasoning; mere error or wrong view is a ground for appeal, not review
  • A preliminary objection must be a pure point of law and cannot bear factual aspects requiring proof by evidence
  • A party dissatisfied with a court's ruling on the scope of a preliminary objection must appeal; review is not available
  • An application for review cannot be used to introduce new grounds not canvassed at the time of the impugned ruling

Court orders

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  1. 1.The application dated 2nd February 2026 is dismissed with costs to the Plaintiffs/Respondents
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules

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, "Makat & 2 others (Suing as the Personal Representatives of ohe Estate of Pulei Markat Deceased) v Oloyionte & 2 others (Environment and Land Case E017 of 2025) [2026] KEELC 2099 (KLR)", Case Analysis (2026). Not stated in the excerpt (Kajiado ELC suit, application dated 2nd February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2099/eng@2026-04-16

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