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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 2879 (KLR)

Jabavu Village Limited v Curson aka Pavel Luvedit Vaclav Curson (Environment and Land Case Civil Suit E040 of 2022) [2026] KEELC 2879 (KLR)

Environment and Land Court
8 May 2026
TMT. Murigi
3,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to undo its 2023 judgment, confirming that waiting over two years and calling an argument an 'obvious error' will not reopen a decided case.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 29th October 2025 under Orders 9 Rule 9, 10 Rule 11, 45 and 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(a) and (d) of the Constitution, seeking leave for Ham & Hamsley Advocates to come on record in place of Chesikaw & Kiprop Advocates, and setting aside of the judgment and decree of 27th April 2023 and all consequential orders. The Plaintiff argued that the 2023 judgment was rendered despite an earlier judgment in ELC No. 993 of 2016 (Paul Curzon v Martin Ngao Muthama & 3 others) over the same property, amounting to res judicata and an error apparent on the face of the record. The Defendant opposed, contending the court was functus officio, that no sufficient cause or error was shown, that the application came after unexplained delay of over two years, and that ownership had been conclusively determined in the earlier suit. The court framed two issues. On the first, it granted leave for the incoming firm, the application being unopposed. On the second, it held the substance of the application was for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1; the Plaintiff had not discovered new matter, the alleged res judicata required substantive comparison of the two suits and was therefore not an error apparent on the face of the record but a possible ground of appeal, no sufficient reason for review existed, and the two-year delay was unexplained. The court affirmed it was functus officio once judgment was delivered, save for the limited review jurisdiction, and that Article 159(2) and section 3A could not override statutory thresholds. The application partially succeeded: leave to come on record was granted, but the setting-aside prayer was dismissed with costs.

Key legal issues

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01

Change of advocates after judgment under Order 9 Rule 9

Holding

Leave granted unopposed for Ham & Hamsley Advocates to come on record in place of Chesikaw & Kiprop Advocates

Reasoning

Order 9 Rule 9 requires a court order for a change of advocate after judgment, to protect advocates from displacement without notice. The application was unopposed, with no replying affidavit or grounds of opposition filed against that prayer, so leave was granted.

p. 4
02

Whether the judgment of 27th April 2023 should be set aside on grounds of res judicata and error apparent on the face of the record

Holding

Refused; the application was properly one for review under Section 80 CPA and Order 45 Rule 1, and no recognized ground for review was established

Reasoning

The substance of the application was for review, not for setting aside a default judgment under Order 10 Rule 11. The plaintiff knew of ELC No. 993 of 2016, so no new matter was discovered; the alleged res judicata argument required substantive comparison of pleadings and issues in the two suits, hence was not a self-evident error on the face of the record but a potential ground of appeal. The court, having rendered judgment, is functus officio except within review jurisdiction; no sufficient reason was shown and the two-year delay was unexplained.

p. 7

Legal principles established

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  • Once a Court has rendered judgment it becomes functus officio except to the limited extent permitted by law, and it cannot sit on appeal over its own judgment
  • An error apparent on the face of the record must be obvious and self-evident, requiring no elaborate argument
  • Article 159(2) on procedural technicalities does not remove jurisdictional thresholds for review
  • Inherent jurisdiction under section 3A cannot override explicit statutory provisions or confer appellate jurisdiction over a court's own judgments

Court orders

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  1. 1.Leave granted to the firm of Ham & Hamsley Advocates to come on record for the Plaintiff in place of Chesikaw & Kiprop Advocates
  2. 2.The prayer seeking to set aside the judgment delivered on 27th April 2023, the decree issued therefrom, and all consequential orders dismissed with costs
Jurisdiction invoked
Sections 80 and 3A of the Civil Procedure Act; Orders 9 Rule 9, 10 Rule 11, 45 and 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(a) and (d) of the Constitution

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, "Jabavu Village Limited v Curson aka Pavel Luvedit Vaclav Curson (Environment and Land Case Civil Suit E040 of 2022) [2026] KEELC 2879 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2879/eng@2026-05-08

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