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ELCDismissedELC NO. E019 OF 2022 OS· [2026] KEELC 3621 (KLR)

Macharia v Kibaga & another (Environment and Land Case E019 of 2022) [2026] KEELC 3621 (KLR)

Environment and Land Court of Kenya
3 June 2026
3,239 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A brother who never joined a land suit lost his bid to overturn the judgment, because the real problem was a wrongly copied court order, not the judgment itself.

What this practically means

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Executive summary

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The Environment and Land Court at Nyeri (E. K. Makori J) dismissed a Notice of Motion dated October 8, 2025 filed by a self-described Interested Party, a brother of the Plaintiff/Respondent, seeking review and setting aside of the judgment delivered on March 20, 2024 in ELC NO. E019 OF 2022 OS, which had granted the Plaintiff rights of adverse possession over land parcel Othaya/Ihuririo/232. The Applicant alleged material nondisclosure and misrepresentation, contending that the suit land forms part of the undistributed estate of Macharia s/o Karundo (deceased 1966), the subject of Nyeri HC P&A Cause No. 257 of 1999, and sought injunctions, registration of restrictions against the title, and cancellation of the Plaintiff's registration as sole proprietor effected on July 17, 2025. The Plaintiff opposed, asserting he acquired the land through adverse possession and that the application was an abuse of process. Framing three issues plus costs, the court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and the authorities of Masila v Krotonite Enterprises and the Raniga requirements, alongside Mativo J's exposition in the Republic v Medical Practitioners & Dentists Board ex parte Kingángá on the serious and limited nature of review. The court held that the succession cause was disclosed in the Plaintiff's own list of documents at the hearing, so no nondisclosure was established; that the Applicant was never joined to the suit; and that the judgment had directed registration in the respondent's name in trust for himself and his siblings pending distribution, meaning the decree extracted on May 17, 2024 was erroneously extracted. The proper remedies were correction of the decree or joinder and amendment, not review. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the judgment of 20 March 2024 should be reviewed/set aside for material nondisclosure and misrepresentation

Holding

No. The succession matter was before the court at judgment, and the applicant was not properly joined; the defect lay in the erroneously extracted decree, not the judgment.

Reasoning

The court found that the Plaintiff's own list of documents annexed to the Originating Summons included a Summons for Confirmation of Grant listing the suit parcel as subject to Succession Cause 257 of 1999, so there was no nondisclosure. The Applicant was never joined to the suit by any court order. Examination of the record showed the judgment held the land to be registered in the respondent's name in trust for himself and his siblings pending distribution, and the decree extracted on 17 May 2024 did not reflect that holding. The proper remedies were correction of the decree or joinder and amendment.

p. 17
02

Whether the Applicant, not being a joined party, could prosecute the application

Holding

The Applicant was not a recognized party to the suit, having never sought or obtained joinder.

Reasoning

The court noted that the Applicant had not been properly joined before filing the application and no orders allowing his joinder existed. He ought first to have sought joinder. This procedural defect independently undermined the application, since the review jurisdiction under Section 80 and Order 45 applies to persons aggrieved by a decree or order in proceedings in which they are properly before the court.

p. 16

Legal principles established

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  • Review of a judgment is a serious step available only for glaring omission, patent mistake or grave error, not where the complaint attacks the judgment on grounds that are in substance grounds of appeal
  • Where the decree extracted diverges from the court's judgment, the remedy is correction of the decree rather than review of the judgment

Court orders

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  1. 1.The Application dated 8th October 2025 was dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Constitution of KenyaArticle 64(a)

Cases cited (3)

  • Masila & 2 others v Krotonite Enterprises Limited
    (Miscellaneous Application 31 of 2018) [2025] KEELC 4621 (KLR)
  • Vallabhdas Karsandas Raniga – Versus - Mansukhlal Jivraj and Others
    (1965) 1 EA 700 (CAN)
  • Republic v Medical Practitioners & Dentists Board & Another & another; MIO1 on behalf of MIO2 (a Minor) & another (Interested Party); Kingángá (Ex parte)
    (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR)
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction of the court that passed the decree)

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, "Macharia v Kibaga & another (Environment and Land Case E019 of 2022) [2026] KEELC 3621 (KLR)", Case Analysis (2026). ELC NO. E019 OF 2022 OS. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3621/eng@2026-06-03

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