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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Who should bear the costs of the application
Key legal issues
#Discovery of new and important matter as a ground for review
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
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'.
Error apparent on the face of the record
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
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.
Any other sufficient reason - alleged financial hardship
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
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.
Protection of the decree-holder pending appeal
The Applicant identified no concrete alternative security; dispensing with security would remove the protection upon which stay was granted
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 7th May 2026 is dismissed
- 2.The Applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Dispensation with security altogether
No concrete alternative proposed and Respondents' protection could not be assured
Costs
The Applicant shall bear the costs of the application.
Quotable passages
#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.
the Notice of Motion dated 7th May 2026 is without merit and is hereby dismissed.
The Applicant shall bear the costs of the application.
review cannot ordinarily be used to repair an evidential omission without explaining why the evidence was unavailable earlier
The Court exercising review jurisdiction must avoid assuming an appellate role over its own decision.
Issues in the judgment
#Duplicated paragraph numbering in the judgment (two paragraphs numbered 3)
Chronology inconsistency: earlier application dated 26th June 2025 seeks stay from a ruling, yet the ruling reviewed is dated 30th April 2026
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.