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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there is an error apparent on the face of the record in the ruling of 27th November 2025
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
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.
Whether there was discovery of new and important matter or evidence
No; the alleged new ground (insufficiency of the grant) was not part of the preliminary objection and was within the Applicant's knowledge earlier
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.
Whether the application was filed without undue delay
A delay of 38 days was inordinate in the circumstances and not sufficiently explained by the Applicant's age of 82 years
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.