Tarus & 51 others v General & 33 others (Constitutional Petition 8 of 2020) [2026] KEELC 4038 (KLR)
The bottom line
#The Environment and Land Court in Eldoret refused to reopen its judgment in a long-running Sergoit River Farm land dispute, ruling you cannot seek review while an appeal is pending.
What this practically means
#Executive summary
#Key legal issues
#Whether the pending appeal by the Petitioners barred the review application
Yes. Under Order 45 Rules 1 and 2, review is unavailable where an appeal has been preferred, and where the grounds are common to the appellant, the applicant must go to the appellate court.
The Petitioners had lodged a Notice of Appeal dated 3rd March, 2025 against the judgment, which by Order 42 Rule 6(4) is deemed duly filed. The appeal concerned ownership of the suit property, the same issue the Applicants raised. Order 45 Rule 2 precludes review where the ground is common to the applicant and the appellant; the Applicants should have sought leave before the Court of Appeal instead.
Whether the Applicants' joinder and alleged proprietary interests constituted new and important matter or evidence
No. The Applicants were not parties at trial, their occupation was open knowledge, and the joinder was engineered by their own application; the court's prior ruling merely gave them a platform against eviction, not recognition of rights.
New matter must have existed at trial but was unobtainable even with due diligence. The Applicants' occupation of the land was open knowledge and their joinder was self-engineered after judgment. The 18th September 2025 ruling did not acknowledge definitive rights, only protected them against an eviction notice, and the court reaffirmed that their purchase-based claims raised a different cause of action suited to a fresh suit.
Whether there was an error apparent on the face of the record in the judgment
No. The judgment did not allocate land to the 5th Respondent's estate; it merely observed a fact discernible from the title, and abatement of the suit against the deceased 5th Respondent did not extinguish ownership.
An error apparent on the face of the record must be manifest and not depend on long drawn reasoning. The court cited its 18th September 2025 ruling: the trial judge made no declaration of ownership, only an observation on a fact discernible from the title. Failure to substitute the deceased under Order 24 caused abatement only as against the 5th Respondent and did not alter ownership records.
Whether the denial of a hearing to the Applicants constituted sufficient reason for review
No. The judgment dismissed the Petition and was a negative order that left all parties, including the Applicants, in their pre-suit positions and did not affect their interests.
The judgment of 26th February 2025 dismissed the Petition as unmerited. A dismissal is a negative order incapable of execution and leaves parties where they were before filing. The Applicants' purchase-based claims raised a cause of action wholly different from the Petitioners' prescription-based claim, and no orders capable of affecting the Applicants' interests were issued. Granting review would amount to sitting on appeal over a decision of a court of concurrent jurisdiction.
Legal principles established
#- Review and appeal cannot proceed simultaneously; a party who has filed an appeal must withdraw it before seeking review of the same decision
- Only a party to the suit at the time of trial can invoke the discovery of new and important matter or evidence as a ground of review
- A dismissal is a negative order incapable of execution and leaves parties in the position they were in before the case was filed
Court orders
#- 1.The 18th to 29th Interested Parties' application dated 5th November, 2025 is dismissed
- 2.Costs of the application awarded to the 5th Respondent only
- Jurisdiction invoked
- Articles 22, 25, 40, 50 and 258 of the Constitution; Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarus & 51 others v General & 33 others (Constitutional Petition 8 of 2020) [2026] KEELC 4038 (KLR)", Case Analysis (2026). ELC Petition Case No. 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4038/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.