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ELCPartially AllowedMSA. ELC. 168 OF 2009· [2026] KEELC 4727 (KLR)

Ethics and Anti-Corruption Commission (EACC) Formerly (Kenya Anti- Corruption Commission) v Bernsoft Limited & 3 others (Environment and Land Case 168 of 2009) [2026] KEELC 4727 (KLR)

Environment and Land Court
23 July 2026
JOJ. O. Olola
2,564 words in judgment
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The bottom line

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The Mombasa Environment and Land Court dismissed a bid to review a land ruling but allowed a new owner to join the case and defend its title.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (J.O. Olola, J) determines two applications arising in a long-running land suit filed by the Ethics and Anti-Corruption Commission seeking cancellation of titles over LR No. MN/I/2396. First, the 3rd Defendant, Sammy Silas Komen Mwaita, sought review of a ruling delivered on 8th February 2024 (erroneously described as a judgment of 8th February 2023) which allowed the 1st and 2nd Defendants' applications to set aside judgment but dismissed his similar application. He argued the ruling was absurd and contradictory since the decree ran jointly and severally, and sought leave to defend alongside the 1st and 2nd Defendants. The Court, applying Order 45 Rule 1(1), held the application was filed over a year after the ruling without explanation and that the complaint of absurdity and the court 'blowing hot and cold' could only be a ground of appeal; a court cannot sit on appeal over a decision of concurrent jurisdiction. The motion was dismissed with costs. Second, Master Power Systems Limited, claiming registered ownership of the suit property since a transfer registered on 25th February 2009, sought joinder as 4th Defendant with leave to file a defence. Applying Order 1 Rule 10 and the Deported Asians Custodian Board test as approved in Pravin Bowry, the Court found it a necessary party given the ownership dispute and its absence when the original judgment cancelled its title. The Chamber Summons was allowed with no order as to costs, with 21 days granted for filing its defence and documents, and 14 days to the Plaintiff to respond.

Key legal issues

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01

Review under Order 45

Holding

The 3rd Defendant's application failed; no error apparent on the face of the record and inordinate unexplained delay

Reasoning

Review lies only on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, made without unreasonable delay. The application was filed more than a year after the ruling of Justice L. L. Naikuni without any explanation. The complaint that the ruling was absurd and contradictory is a matter for appeal, and a court cannot sit on appeal over a decision of a court of concurrent jurisdiction.

p. 7
02

Joinder under Order 1 Rule 10

Holding

The Applicant was joined as 4th Defendant as a necessary party

Reasoning

A person ought to be joined where the orders sought would legally affect their interests or where complete adjudication requires their presence. The dispute concerns ownership of the suit property which the Applicant claims as registered owner by a transfer registered on 25th February 2009, and the judgment initially cancelled its title without it being heard. Joining it allows it to defend its position while the Plaintiff may challenge the acquisition.

Legal principles established

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  • Disagreement with a decision of a court of concurrent jurisdiction on the basis that it was absurd or wrong in law is a ground of appeal, not review
  • A person whose title to suit property is in dispute is a necessary party for complete adjudication

Court orders

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  1. 1.The Notice of Motion dated 12th May 2025 is dismissed with costs to the Plaintiff
  2. 2.The Chamber Summons dated 14th November 2025 is allowed with no order as to costs
  3. 3.The 4th Defendant is granted 21 days to file and serve a Statement of Defence, Witness Statement(s) and documents for trial
  4. 4.The Plaintiff shall have 14 days after service by the 4th Defendant to file statements and/or documents in rebuttal
Jurisdiction invoked
Order 45 Rule 1(1) and Order 1 Rule 10 of the Civil Procedure Rules, 2010

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, "Ethics and Anti-Corruption Commission (EACC) Formerly (Kenya Anti- Corruption Commission) v Bernsoft Limited & 3 others (Environment and Land Case 168 of 2009) [2026] KEELC 4727 (KLR)", Case Analysis (2026). MSA. ELC. 168 OF 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4727/eng@2026-07-23

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