Momanyi & another v Ongwae & 3 others (Environment and Land Case E007 of 2023) [2026] KEELC 4201 (KLR)

d. 2. That the Honourable Court be pleased to make reasonable provision for the costs of this application. The application is premised on the grounds stated on the face of the application and deposed to in the supporting afidavit thus, i. That the Applicant is aggrieved by the order that he deposits a sum of Kshs.6,000,000.00 in an interest earning account as a condition for stay when the sum awarded as general damages in the judgment of 1st, October 2025 was Kshs. 3,000,000.00 ii. That the Honourable trial Judge, in putting a condition that should the Ist Defendant's appeal be unsuccessful, then the sum of Kshs.6,000,000.00 and not Kshs.3,000,000.00, would be released to the Ist and 2nd Respondents is tantamount to writing two judgments in the same suit. iii. That there is therefore an error apparent on the face of the record. iv. That in the alternative to ground (c) hereof, there is suficient reason why the Honourable Court ought to or should review the said ruling. 3. The Plaintifi/Respondent opposed the application by way of a replying afidavit sworn by the 2nd plaintifi, Stanley Memba Mokaya, on his own behalf and with the authority of the 1st plaintifi. He contends that the application is intended solely to frustrate the respondents from enjoying the fruits of the judgment already entered in their favour. He maintains that the application does not disclose any error apparent on the face of the record or any other ground that would justify review of the court's orders. 4. The deponent further avers that a stay of execution is a discretionary remedy and that the court had already exercised its discretion when determining the earlier application for a stay. He argues that the applicant is merely challenging the manner in which that discretion was exercised, without having lodged a notice of appeal. He emphasises that the applicant had expressed willingness to comply with any security requirements imposed by the court and should therefore comply with the conditions for a stay in full. 5. He states that the respondents continue to sufier deprivation of the suit property as a result of the stay orders, and that this prejudice was one of the factors the court considered when imposing conditions for the stay. He adds that the applicant was granted a generous sixty-day period to comply with those conditions but has made no demonstrated efiort to deposit the ordered security of Kshs. 3,000,000, despite not challenging that requirement. 6. In his view, the present application is merely an attempt to delay compliance with the court's orders under the guise of seeking a review, and the applicant has failed to demonstrate good faith by complying with the undisputed conditions. The respondents therefore urge the court to dismiss the application dated 30 March 2026, with costs. 7. The 1st defendant/applicant submits that the application is properly before the court under Order 45 Rule 1 of the Civil Procedure Rules, which permits review where there is an error apparent on the face of the record or for any other suficient reason. According to the applicant, the court’s order directing the 1st Defendant to deposit Kshs. 6,000,000 in a joint interest-earning account is inconsistent with the judgment, which awarded general damages of Kshs. 3,000,000. They contend that requiring security amounting to twice the damages awarded is a clear error that warrants correction by review. 8. The defendants argue that a court record is not confined to a single document but includes all pleadings, proceedings, rulings and judgments forming part of the case. Consequently, they maintain https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4201/eng@2026-07-02 2

page 2 of 4

that the inconsistency between the judgment and the subsequent ruling is an error apparent on the face of the record. They rely on judicial authorities that define such an error as obvious and self-evident, requiring no elaborate argument or detailed examination to establish. 9. They further submit that the order requiring a deposit of Kshs. 3,000,000 to account for opportunity cost and the time value of money has no basis in the pleadings or the judgment. The plaintifis neither pleaded nor proved any claim for opportunity cost, and the court did not award damages on that basis. In their view, introducing such a requirement at the stage of determining the application for a stay amounts to granting relief that was neither sought nor adjudicated. 10. The defendants distinguish between the remedies of appeal and review, contending that the present application does not challenge the merits of the court’s reasoning but merely seeks to correct an obvious error in the order. They argue that where the mistake is manifest on the face of the record, review is the appropriate remedy and does not amount to inviting the court to sit on appeal over its own decision. They urge the court to grant the orders sought. 11. The Plaintifis/Respondent, in their reply, do not dispute that the amount awarded was Kshs 3,000,000. However, they argue that, in ordering Kshs 6,000,000 to be deposited as security, the court properly exercised its discretion, and hence there is no basis to review the said order. Is this a correct argument? 12. I have read the ruling that is the subject of this review application. The trial judge, in paragraphs 14, 15 and 16 of the ruling, explained his justification for directing the deposit of Kshs 6,000,000. Those paragraphs state in part: “ 14. ….it is correct that there was no substantial economic activity they (plaintifis) were undertaking on the land but the fact that the stay granted means that if they wished to start any project, the same is stalled. …I am prepared to order the Applicant to deposit Kshs 3,000,000 to compensate the Plaintifi in terms of opportunity costs and time value as the appeal may take 2-3 years to be heard. 15. On money aspect of the decree, this will need to be secured by a deposit. 16. In total, I am therefore prepared to grant a stay of execution subject to the Applicant depositing the sum of Kshs 3,000,000.” 13. From my reading of the impugned ruling, the additional Kshs 3,000,000 was intended to secure the Plaintifi's interest during the period of waiting for the appeal to be determined, without the liberty to use the suit land. It is therefore erroneous for the 1st Defendant/Applicant to consider only the amount awarded as general damages in pointing out that there was error on the face of the record. 14. Can the error be rectified by way of an application for review? Order 45 of the Civil Procedure Rules allows review on account of error or mistake and on the ground of suficient cause shown. However, what is on record in the ruling is not an error or mistake apparent on the face of the record; rather, it is a finding which, in my considered view, would be challenged by way of appeal, not review. 15. It would be irregular and unlawful to alter the determination of the conditions set for granting the stay of execution, as urged in this application, as it amounts to my sitting on appeal from a decision of a judge of concurrent jurisdiction. In the case of National Bank of Kenya Ltd vs Ndungu Njau [1996] KLR 469 (CAK) at page 381, the court held: “ In my discernment, an order cannot be reviewed because it is shown that the judge decided the matter on a foundation of incorrect procedure and or that his decision revealed a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4201/eng@2026-07-02 3

page 3 of 4

misapprehension of the law, or that he exercised his discretion wrongly in the case. Much less could it be reviewed on the ground that the other judges of coordinate jurisdiction and even the judge whose order is sought to be reviewed have subsequently arrived at difierent decisions on the same issue" In my opinion the proper way to correct a judge’s alleged misapprehension of the procedure or the substantive law or his alleged wrongful exercise of discretion is to appeal the decision unless the error be apparent on the face of the record and therefore requires no elaborate argument to expose.” 16. Can the court grant the application for review on the basis of suficient cause? I think not, because the line remains thin. Any variation of the orders would amount to dissecting the reasoning that led to the securing of the interests of the Respondents, namely, the lack of opportunity to use the land during the pendency of the appeal lodged by the 1st Defendant/Applicant. 17. In the foregoing analysis, I find no merit in the application dated 30th March, 2026. It is dismissed with costs to the Respondents. DATED, SIGNED AND DELIVERED AT KISII THIS 2ND DAY OF JULY, 2026. A. OMOLLO JUDGE 1 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4201/eng@2026-07-02 4

page 4 of 4