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ELCDismissedELCLC Appeal No. E009 of 2025

Dololomide Irrigation Scheme v Guray Omar Sheikh Hassan & Mohamed Ali Hussein (Suing as the Chairperson and the Vice Chairperson of Lien Guray Siqley Farm Group)

Environment and Land Court of Kenya
1 October 2026
2,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Garissa refused to waive a Kshs. 1 million security deposit, ruling that financial hardship claims need solid evidence, not just assertions.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Garissa determined a Notice of Motion dated 7th May 2026 by Dololomide Irrigation Scheme, the appellant before the Court in an appeal from Garissa MCELC No. E004 of 2025. The Scheme sought review of the condition attached by Kibunja J. on 30th April 2026 to a stay of execution - deposit of Kshs. 1,000,000/= within thirty days in an interest-earning joint account or with the Court - or dispensation with security altogether, pleading that cessation of donor support had made the deposit impossible for a subsistence farming scheme whose advocates acted pro bono. The Respondents, office-holders of the respondent farm group, opposed, arguing no new evidence or error existed and no inability was substantiated. The Court, Omondi R. Owino J., framed two issues: whether a review ground under section 80 of the Civil Procedure Act and Order 45 rule 1 was established, and costs. It held that promptness, though present, cannot substitute for a substantive ground; that the pre-ruling diminution of donor support was known but undisclosed, so review could not repair that omission; that post-ruling cessation was a subsequent event, not new evidence, and even under the residual 'sufficient reason' ground was not particularised with donor correspondence, financial particulars or proof of efforts to comply; and that no apparent error existed, the amount having been deliberately fixed below the Respondents' proposed Kshs. 3,000,000/=. No concrete alternative security was proposed, and access-to-justice and proportionality arguments could not replace proof. The application was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has established a ground for review of the security condition of Kshs. 1,000,000/= imposed in the ruling of 30th April 2026
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Discovery of new and important matter as a ground for review

Holding

Rejected: the alleged diminution of donor support existed before the ruling and was known to the Applicant; cessation after the ruling is a subsequent event, not discovery of new evidence

Reasoning

Order 45 rule 1 requires evidence which, despite due diligence, could not have been produced when the order was made. The chairperson admitted the diminution predated the ruling but was undisclosed, without explaining why. A post-order development is a different matter, to be considered, if at all, under 'sufficient reason'.

p. 5
02

Error apparent on the face of the record

Holding

None demonstrated; the amount resulted from a deliberate exercise of discretion, fixed below the Respondents' proposed Kshs. 3,000,000/=; excessiveness invites reassessment of discretion, which review does not permit

Reasoning

The court distinguished an apparent error from an allegedly erroneous decision, relying on Nyamogo & Nyamogo and Muyodi. Disagreement with a concluded exercise of discretion is a matter for appeal, not review.

p. 6
03

Any other sufficient reason - alleged financial hardship

Holding

Rejected for want of particulars: no disclosure of funds, receipts, contributions, efforts to raise the deposit or donor correspondence; neither subsistence-farmer status nor pro bono representation establishes inability to comply

Reasoning

The court accepted that audited accounts are not the exclusive proof of hardship but required a sufficiently detailed factual account enabling assessment of the change, its effect on compliance and any alternative. General assertions of hardship did not suffice.

p. 5
04

Protection of the decree-holder pending appeal

Holding

The Applicant identified no concrete alternative security; dispensing with security would remove the protection upon which stay was granted

Reasoning

Applying Nduhiu Gitahi and Arun C. Sharma, security serves to guarantee performance and may take forms causing least disadvantage, but removal requires a proper basis and demonstrated adequacy of protection.

p. 6

Legal principles established

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  • Promptness is an additional requirement accompanying, not an independent substitute for, an established ground for review
  • Review cannot be used to repair an evidential omission the applicant could have disclosed when the order was made
  • A post-order change of circumstances may fall under the residual ground of sufficient reason but must be sufficiently particularised with evidence
  • Security for stay serves a protective, not punitive, purpose and its form need not be a cash deposit if the opposite party is adequately protected

Court orders

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  1. 1.The Notice of Motion dated 7th May 2026 is dismissed
  2. 2.The Applicant shall bear the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court at Garissa
Garissa MCELC No. E004 of 2025
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Orders 42 rule 6, 45 rule 1 and 51 rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Review, variation or setting aside of the Kshs. 1,000,000/= security condition

No ground for review under section 80 CPA / Order 45 rule 1 established; no new evidence, apparent error or sufficient reason demonstrated

p. 6

Dispensation with security altogether

No concrete alternative proposed and Respondents' protection could not be assured

p. 6

Costs

The Applicant shall bear the costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, although the application was brought without unreasonable delay, the Applicant has established neither discovery of new and important evidence within the meaning of Order 45 rule 1, nor an error apparent on the face of the record, nor any other sufficient reason.
p. 6Failure of all grounds for review
the Notice of Motion dated 7th May 2026 is without merit and is hereby dismissed.
p. 7Final orders - dismissal of the application
The Applicant shall bear the costs of the application.
p. 7Costs order
review cannot ordinarily be used to repair an evidential omission without explaining why the evidence was unavailable earlier
p. 5Review vs. withheld evidence
The Court exercising review jurisdiction must avoid assuming an appellate role over its own decision.
p. 3Limits of review jurisdiction

Issues in the judgment

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minor

Duplicated paragraph numbering in the judgment (two paragraphs numbered 3)

minor

Chronology inconsistency: earlier application dated 26th June 2025 seeks stay from a ruling, yet the ruling reviewed is dated 30th April 2026

minor

Filing date discrepancy: application dated 7th May 2026 but stated as filed on 25th May 2026; further affidavit sworn 3rd July 2026 yet Respondents replied 8th June 2026

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, "Dololomide Irrigation Scheme v Guray Omar Sheikh Hassan & Mohamed Ali Hussein (Suing as the Chairperson and the Vice Chairperson of Lien Guray Siqley Farm Group)", Case Analysis (2026). ELCLC Appeal No. E009 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6027/eng@2026-10-01

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