Kinyago v Githinji & 2 others (Civil Appeal E017 of 2024) [2026] KEELC 5300 (KLR)

The court acknowledged the settled position that Magistrates' Courts lack jurisdiction over adverse possession claims, and that a decision without jurisdiction is a nullity. However, at the date of the judgment of 26th July 2024 there were two conflicting factions of ELC judges on the point. The Sugawara v Kiruti decision of 11th October 2024 resolved the dispute only after the judgment. Such a subsequent development of the law is not a new and important matter under Order 45, nor an error apparent on the face of the record. The judge cannot revise a colleague's judgment.

The Court held that the trial court's judgment of 22nd June 2022 remains binding as affirmed by the ELC on appeal. A single judge cannot, on review, displace a judgment of a colleague that had affirmed the matter, and the correct avenue for an error of law later clarified by a superior court is an appeal. The court therefore declined to substitute the affirmed judgment with its own decision on review, citing lack of jurisdiction to do so.

The court set out the statutory framework for review and the Court of Appeal's formulation in National Bank of Kenya v Ndungu Njau: the error or omission must be self-evident and not require elaborate argument; it is not sufficient that another judge could have taken a different view, nor that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. These principles were applied to reject the Applicant's grounds.