Wekesa v Bukamu & another (Environment and Land Case 49 of 2016) [2025] KEELC 8468 (KLR)

5. The respondent deposes that it has taken the applicants 4 years to file this application, which lacks merit, is misconceived, vexatious, bad in law, a delaying tactic, and is out to deny her from enjoying the fruits of her judgment. 6. The respondent deposes that there is no mistake or error apparent on the face of the record. 7. The applicants rely on written submissions dated 15/11/2025. Reliance is placed on Pancras T. Swai -vs- Kenya Breweries Ltd, Nairobi Court of Appeal No. 275 of 2010, National Bank of Kenya -vsNdungu Njau Civil Appeal No. 211 of 1996, and Timothy Macharia -vs- PS Ministry of Education & Another, Nyandarua ELC JR No. 1 of 2021. 8. A court may, through review based on mistake or an error apparent on the face of the record, revisit its judgment, decree, or order. 9. In Karanja -vs- Murigi Civil Appeal No. 68 of 2019 [2025] KECA 517 [KLR] (21st March 2025) (Judgment), the court said that such an error must be self-evident, not against extensive argument to establish it as held in Nyamongo & Nyamongo Advocates -vs- Kogo [2001] eKLR. 10. In National Bank of Kenya (supra), the court emphasized that a review is not an appeal in disguise and that the mere fact that a court reached a wrong conclusion on law or fact is not a ground for review but one for an appeal. 11. Further in Stephen Githua Kimani -vs- Nancy Wanjira Warunga T/A Providence Auctioneers [2016] eKLR, the court said that a party cannot be allowed to invoke the review jurisdiction simply because they are aggrieved by the decision and have failed to appeal. 12. In the replying afidavit, it has been deposed that the application is filed after 4 years, following the unsuccessful attempt to appeal against the decision. The ground report relied upon by the applicants is dated March 2020. 13. PW1 testified on 23/1/2021 and confirmed the encroachment out of a surveyor’s report. PW2 was the surveyor who produced a report dated 24/2/2020, as P. Exhibit. No. 11. DW1, the 1st applicant, testified and was shown P. Exhibit. No. 11. 14. Similarly, the 2nd applicant testified as DW2 and was shown the respondent’s exhibits initially, D. Exhibit No. 3. The applicants closed their case without calling any surveyor to produce the attached map and report now being relied upon 4 years down the line. The record shows that their counsel on record had not sought and obtained summons to produce such a report. 15. The applicants do not say when they obtained this new material or evidence, which would have swayed the court in its judgment. The said documents were not listed as part of the applicants’ documents to be relied upon at the hearing. 16. The court has seen copies of the Court of Appeal at Eldoret Civil Appeal No. Eld ELC No. 158 of 2021 order of 10/3/2025 showing that Miss Arunga Advocates for the applicants, appeared over the application dated 22/3/2024 and withdrew the notice of appeal. 17. In Estate of Oliokampai Sarapae Sanguti (Deceased) [2019], the court said that where an error on a substantial point of law stares one on the face, there could reasonably be no two opinions, and it was a clear case of the same. 18. In this application, what the applicants are raising is not staring on the face, or fiowing from the judgment. It requires a long, drawn process of establishing facts on the ground based on survey maps and the situation on the ground. There was already a surveyor who testified at the hearing. The attached https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8468/eng@2025-12-03 2

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report is by Mr. N.M. Nyaboe, a County Surveyor, whose opinion difiers from the one who testified and produced another report. 19. In the Estate of Olikampui Sunguti (supra), the court was clear that where there are two opinions, which can hardly be said to be an error apparent on the face of the record. 20. Prayers numbers 3, 4, and 5 of the application call for the post-judgment re-engagement. The rule of thumb is that courts cannot reopen decisions of peers of equal and competent jurisdiction. See Kenya Hotel Properties Ltd -vs- Attorney General [2022] KESC 62 [KLR] 40 (7th October 2022) (Judgment). 21. The doctrine of finality bars a court, except on review, in exceptional and compelling circumstances, from reopening its decree. See Mwambeja Ranching Company Ltd & another -vs- Kenya National Capital Corporation (Civil Appeal (Application) 30 of 2018) [2023] KECA 660 (KLR) (9 June 2023) (Ruling), and Benjoh Amalgamated Limited & another -vs- Kenya Commercial Bank Limited [2014] KECA 872 (KLR). 22. The upshot is that I find no merits in the application dated 19/9/2025. It is dismissed with costs. 23. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF DECEMBER 2025. In the presence of: Court Assistant – Dennis Defendants present Miss Arunga for applicants present Mr. Bororio for the respondent present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8468/eng@2025-12-03 3

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