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ELCDismissedELC Petition Case No. 8 of 2020· [2026] KEELC 4038 (KLR)

Tarus & 51 others v General & 33 others (Constitutional Petition 8 of 2020) [2026] KEELC 4038 (KLR)

Environment and Land Court
2 July 2026
7,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a Notice of Motion dated 5th November, 2025 by the Applicants, joined as the 18th to 29th Interested Parties, seeking review, variation and setting aside of the judgment delivered on 26th February, 2025 dismissing the Petition, and a fresh hearing with their participation. They claimed proprietary interests in the suit property (Kiplombe/Kiplombe Block II, formerly LR No. 9723, Sergoit River Farm, measuring 854 acres) and argued that the judgment condemned them unheard contrary to Articles 25(c) and 50(1) of the Constitution, that their joinder constituted new and important matter, and that the judgment contained errors on the face of the record, including allocation of land to the deceased 5th Respondent's estate without substitution or cross-petition. The 5th Respondent (Estate of Nyongio Kimitei) opposed, invoking functus officio, the pendency of the Petitioners' appeal, and the limited role of interested parties after judgment. The court identified two issues: whether the judgment should be reviewed, and costs. It held that the pending appeal by the Petitioners barred review under Order 45 Rules 1 and 2; that only a party at trial could rely on discovery of new evidence; that the Applicants' occupation was open knowledge and their joinder self-engineered; that no land was allocated to the 5th Respondent, the judgment merely noting ownership discernible from the title; and that the dismissal was a negative order leaving all parties in their pre-suit positions, so no sufficient reason for review existed. The application was dismissed with costs to the 5th Respondent only.

Key legal issues

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01

Whether the pending appeal by the Petitioners barred the review application

Holding

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.

Reasoning

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.

p. 17
02

Whether the Applicants' joinder and alleged proprietary interests constituted new and important matter or evidence

Holding

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.

Reasoning

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.

p. 23
03

Whether there was an error apparent on the face of the record in the judgment

Holding

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.

Reasoning

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.

p. 26
04

Whether the denial of a hearing to the Applicants constituted sufficient reason for review

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The 18th to 29th Interested Parties' application dated 5th November, 2025 is dismissed
  2. 2.Costs of the application awarded to the 5th Respondent only

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 19(1)(2), 21(1), 22, 25, 25(c), 28, 29, 40, 43, 50, 50(1), 258
  • Civil Procedure ActSections 27, 80
  • Civil Procedure RulesOrder 24 Rules 1 and 4(3); Order 37 Rule 7; Order 42 Rule 6(4); Order 45 Rules 1, 2 and 3(1), proviso to 3(2)
  • Limitation of Actions ActSections 18, 37, 38 & 43
  • National Land Commission Act
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 1, 2, 3, 4, 10, 11, 20, 21, 33

Cases cited (21)

  • Kenya Orient Insurance Company Limited vs Otieno
    (2024)
  • Law Society of Kenya vs Supreme Court of Kenya & Another; Abdullahi SC & 19 Others (Interested Parties)
    Petition E026 of 2024
  • Nairobi City Council Assembly & Another
    (2025) KEHC 5656 (KLR)
  • National Museums of Kenya vs Kikwetu Village Hotel Ltd & 3 Others
    Court of Appeal Civil Appeal No. (2024) KECA 729 KLR
  • Muliango & 2 Others vs Andai Environmental
    Land Appeal No. E039 of 2025 (2025) KEELC 5129 (KLR)
  • Mbogo vs Karani
    Civil Appeal E049 of 2025 (2025) KEHC 6270 (KLR)
  • Bank of Africa Limited vs Mits Electrical Co. Ltd & 2 Others
  • Ismail & Another vs Otwala
    Civil Appeal E067 of 2022
  • Macharia vs Principal Secretary, Ministry of Education & Another
  • David & 2 Others vs Bakaya
  • Muyodi vs Industrial and Commercial Development Corporation & Another
  • Otieno, Ragot & Co. Advocates vs National Bank of Kenya Limited
  • Hosea Nyandika Mosagwe & 2 Others vs County Government of Kisii & Another
  • Trusted Society of Human Rights vs Mumo Matemu
    (2016)
  • Republic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    (2019) KEHC 6379 (KLR)
  • Raila Odinga & Others vs IEBC & Others
    (2013)
  • Telkom Kenya Ltd vs John Ochanda
    (2014)
  • Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Limited & 2 Others
    (2020) eKLR
  • Nyamogo & Nyamogo vs Kogo
    (2001) EA 170
  • Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 others
    (2016) KEHC 8610 (KLR)
  • Raymond M Omboga vs Austine Pyan Maranga
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

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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, "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.