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ELCPartially AllowedELC OS E002 OF 2024· [2026] KEELC 3534 (KLR)

Too & 3 others v Ali (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 3534 (KLR)

Environment and Land Court
10 June 2026
2,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court set aside its own judgment after finding the defendant in a land case was likely an impostor, and ordered a fresh hearing with oral evidence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L Komingoi J) determines a Notice of Motion dated 23rd February 2026 by the Plaintiffs/Applicants seeking review, setting aside or variation of the judgment delivered on 6th February 2026 in an adverse possession originating suit, together with reopening of proceedings and a fresh hearing. The application was brought under Order 45 Rule 1, Order 9 Rule 9, Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, supported by an affidavit of the 1st Plaintiff and a supplementary affidavit annexing an affidavit of Abdi Ali, the true registered proprietor, who disowned any participation in the suit, denied instructing counsel, and explained his absence by medical treatment. The Respondent opposed, arguing the evidence was not new, that a new cause of action (purchase and transfer) was being introduced in place of adverse possession, that fraud was not proved to the required standard, and that the application was an appeal in disguise. The court examined the record and could not verify the site visit referenced in the impugned judgment. It held the affidavit evidence made it practically impossible for the genuine proprietor to have participated in the proceedings, which constituted 'any other sufficient reason' for review, guided by authorities confirming an unfettered discretion to review. The court allowed the application, set aside the judgment of 6th February 2026, reopened the proceedings and directed a fresh hearing by viva voce evidence, but ordered the Plaintiffs/Applicants to bear the costs of the application.

Key legal issues

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01

Whether the applicants demonstrated sufficient reason under Order 45 Rule 1 and Section 80 to warrant review and setting aside of the judgment

Holding

The application for review succeeds because the evidence of the true registered proprietor indicates the proceedings were conducted by an impostor, constituting 'any other sufficient reason'

Reasoning

The court considered the affidavit of Ali Abdi Ali, the true registered proprietor, who disowned participation in the suit, together with that of his daughter. It found the facts would make it practically impossible for the genuine proprietor to have sworn the affidavits or instructed counsel. This reinforced the applicants' position that the proceedings were conducted by an impostor, which the court held constitutes sufficient reason within Order 45 Rule 1 to review and set aside the judgment.

p. 10
02

Scope of 'any other sufficient reason' as a ground for review

Holding

The court has an unfettered discretion to review for any sufficient reason; the ground need not be analogous to the other enumerated grounds

Reasoning

Tracing the jurisprudence from Sadar Mohamed v Charan Singh through Yusuf v Nokrach to Wangechi Kimita & Another v Mutahi Wakabiru, the court adopted the position that restricting 'any other sufficient reason' to grounds analogous to those in the rule would be a clog on the unfettered right given to the court by Section 80 of the Civil Procedure Act. The court therefore exercised a broad discretion in assessing sufficient reason.

p. 11
03

Whether the previous judgment's reference to a site visit was supported by the record

Holding

The court could not confirm there was a site visit, as the record contained no directions or notes depicting one

Reasoning

On examining the court record, the judge found no directions for a site visit despite the judgment of 6th February 2026 referring to one. Since the originating summons proceeded by way of affidavit evidence and no notes depicting a site visit existed, the court found it hard to confirm that such a visit occurred, undermining the integrity of the impugned judgment.

p. 9

Legal principles established

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  • The court has an unfettered discretion to review its own decrees or orders for any sufficient reason
  • A court possesses residual jurisdiction to reopen a decided matter in cases of fraud, bias or other injustice notwithstanding the absence of explicit statutory jurisdiction

Court orders

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  1. 1.That the judgment delivered on the 6th February 2026 is hereby set aside
  2. 2.That the proceedings are hereby reopened and the suit be heard afresh by way of viva voce evidence
  3. 3.That the Plaintiffs/Applicants do bear costs of the Application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80

Cases cited (15)

  • National Bank of Kenya Ltd Vs Ndungu Njau
    (1997) eKLR
  • Lazarus Estates Ltd Vs Beasley
    (1956) QB 702
  • Benjoh Amalgamated Ltd & Another Vs Kenya Commercial Bank Ltd
    (2014) eKLR
  • Shanzu Investments Limited Vs Commissioner of Lands
    (1993) eKLR
  • Pancras T.Swai Vs Kenya Breweries Limited
    (2014) eKLR
  • Sadar Mohamed Vs Charan Singh
    (1959) EAI 793
  • Yusuf Vs Nokrach
    (1971) EA 104
  • Wangechi Kimita & Another Vs Mutahi Wakabiru
    CA No 80 of 1985 (unreported)
  • Republic Vs Public Procurement Administrative Review Board & 2 others
    (2018) eKLR
  • Rose Mpanju Kaiza Vs Angelo & Aother
  • Francis Origo Kaiza Vs Jacob Kumali Mungala
  • Mtana Lewa Vs Kahindi Ngala Mwagandi
  • Wambugu Vs Njuguna
  • Kweyu Vs Omutut
  • Muyodi Vs Industrial and Commercial Development Corporation
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, "Too & 3 others v Ali (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 3534 (KLR)", Case Analysis (2026). ELC OS E002 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3534/eng@2026-06-10

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