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)

5. The stay of execution was conditional upon the Applicant depositing Kshs. 1,000,000/= in an interest-earning account in the joint names of the parties’ advocates, or with the Court, within thirty days. In default, the stay of execution would lapse automatically. The Court settled on that amount after considering the Respondents’ proposal for security of Kshs. 3,000,000/= and the Applicant’s willingness to comply with such conditions as the Court might impose. NM 7.5.2026 III. Parties’ Cases 6. The Applicant contends that the security is onerous, excessive and beyond its financial reach. It describes itself as a scheme comprising small-scale subsistence farmers whose livelihood depends on cultivation of the suit land. It states that its members have no commercial output capable of generating sufficient income to meet the deposit and that its advocates are acting on a pro bono basis. 7. Its principal ground for review is the alleged diminution and eventual cessation of donor support previously provided through irrigation infrastructure, agricultural inputs and operational assistance. The Applicant maintains that the resulting deterioration in its financial position has made compliance impossible. 8. In the further affidavit, the deponent states that donor support had substantially diminished by the time the earlier ruling was delivered, but that this fact was not brought to the Court’s attention. He further states that the eventual withdrawal of support constitutes a new and material fact. He explains that the Applicant does not maintain commercial accounts, audited financial statements or income records because it is a subsistence farming scheme rather than a profit-making organisation. Applicant's Further Affidavit 9. In its submissions, the Applicant relies principally on Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR and Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR. It characterizes the cessation of donor support as sudden, unforeseen, and subsequent to the ruling. It also submits that the application was filed promptly and that maintaining the security condition would render the stay illusory. 10. The Respondents oppose the application through the replying affidavit of Guray Omar Sheikh Hassan sworn on 8th June 2026. They contend that the Applicant’s circumstances as a subsistence farming scheme were already before the Court and that no new evidence or apparent error has been demonstrated. 11. The Respondents further contend that neither the alleged cessation of donor support nor the asserted inability to raise security is substantiated. They point to the absence of donor correspondence, financial records or other material disclosing the Applicant’s resources. They maintain that dispensing with security would deprive them of the protection upon which the stay was granted. 12. In their submissions, the Respondents rely on, among other authorities, Pancras T. Swai v Kenya Breweries Limited, National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR and Rose Kaiza v Angelo Mpanju Kaiza. They submit that the application amounts to an invitation to reconsider a concluded exercise of discretion and should be dismissed with costs. Page 2 of 7

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IV. Issues for Determination 13. Having considered the application, the affidavits and the parties’ submissions, the issues are whether the Applicant has established a ground for review of the security condition and who should bear the costs of the application. V. Applicable Legal Principles 14. The jurisdiction to review a decree or order is conferred by section 80 of the Civil Procedure Act, while Order 45 rule 1 of the Civil Procedure Rules prescribes the grounds for its exercise. An applicant must establish discovery of new and important matter or evidence which, despite due diligence, was not within its knowledge or could not have been produced when the order was made; a mistake or error apparent on the face of the record; or any other sufficient reason. The application must also be brought without unreasonable delay. 15. In Francis Origo & another v Jacob Kumali Mungala [2005] eKLR, the Court of Appeal affirmed that an applicant must establish one of those grounds and approach the Court without unreasonable delay. Promptness is therefore an additional requirement, rather than an independent ground for review. An application brought expeditiously may nevertheless fail if no substantive ground is established. 16. Where review is sought on discovery of new evidence, the applicant must demonstrate both the materiality of the evidence and why it could not have been produced earlier despite due diligence. In D.J. Lowe & Company Ltd v Banque Indosuez, Civil Application No. Nai. 217 of 1998, the Court of Appeal cautioned against using review to strengthen weaknesses revealed by an adverse decision. The applicant must show that the earlier omission was not attributable to remissness in presenting its case. This complements the requirement of proof and diligence explained in Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR. 17. An error apparent on the face of the record is distinguishable from a decision alleged to be erroneous. In Nyamogo & Nyamogo Advocates v Kogo [2001] EA 174, the Court of Appeal explained that an error requiring a prolonged process of reasoning, or concerning a point on which two opinions may reasonably exist, ordinarily falls outside that ground. The Court reiterated this distinction in Muyodi v Industrial and Commercial Development Corporation & another [2006] 1 EA 243. Review is therefore not an opportunity to substitute another possible assessment of the same material. 18. Similarly, in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held that disagreement with a concluded exercise of discretion does not, without more, justify review. An alleged erroneous conclusion of law ordinarily calls for appellate scrutiny. The Court exercising review jurisdiction must avoid assuming an appellate role over its own decision. 19. The expression “any other sufficient reason” permits a broader inquiry than the first two grounds. In Wangechi Kimita v Wakibiru Mutahi [1985] eKLR, the Court of Appeal recognized that sufficient reason need not be analogous to discovery of new evidence or an apparent error. The Court reaffirmed that approach in Pancras T. Swai Page 3 of 7

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v Kenya Breweries Limited [2014] eKLR. The breadth of the ground nevertheless requires a demonstrated reason sufficient to justify reopening the order; it does not confer an entitlement to a fresh hearing merely because the outcome is unfavorable. 20. The review principles must, in this application, be read alongside Order 42 rule 6(2) (b), which requires such security as the Court orders for due performance of the decree or order ultimately binding upon the applicant. In Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 others [2014] eKLR, the Court explained that security serves to guarantee performance rather than punish the judgment debtor. Its nature and amount must accordingly serve that protective purpose. 21. Security need not invariably take the form of a cash deposit. In Nduhiu Gitahi & another v Anna Wambui Warugongo [1988] KLR 621, the Court of Appeal emphasized that, provided the opposite party is adequately protected, security should be furnished in a manner that causes the least disadvantage to the party providing it. The governing consideration is adequate protection of both parties pending appeal. That principle permits consideration of an appropriate alternative, but does not establish a right to dispense with protection altogether. 22. A condition fixing security is therefore amenable to review upon an established ground. Where financial hardship or changed circumstances are relied upon, the applicant must provide sufficiently particularised evidence enabling the Court to assess the alleged change, its effect on compliance, and the adequacy of any proposed alternative. The Court’s discretion must be exercised on that factual foundation while preserving the balance between the parties’ competing interests. VI. Analysis and Determination 23. I have considered the application, the supporting and further affidavits, the Respondents’ replying affidavit and the parties’ submissions. The question is whether the Applicant has established a ground for reviewing the security condition imposed on 30th April 2026. The Court’s power to review that condition is distinct from whether the material presented warrants its exercise. 24. On promptness, the application was filed on 25th May 2026, approximately twentyfive days after the ruling. I do not consider that interval unreasonable in the circumstances. Nevertheless, as explained in Francis Origo & another v Jacob Kumali Mungala [2005] eKLR, promptness must accompany an established ground for review. It cannot independently sustain the application. 25. The Applicant principally relies on the alleged withdrawal of donor support and the resulting deterioration in its financial position. Its account presents two circumstances requiring separate consideration: the diminution of support before the ruling and its alleged eventual cessation thereafter. 26. At paragraph 6 of the further affidavit, the Applicant’s chairperson states that donor support had substantially diminished by the time the ruling was delivered, but that this fact was not brought to the Court’s attention. This describes a circumstance existing before the order. The Applicant does not explain when it became aware of that Page 4 of 7

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diminution, why it could not have disclosed it earlier, or what diligence it exercised to ascertain its funding position. 27. The distinction is material. Order 45 rule 1 concerns evidence which, despite due diligence, was not within the applicant’s knowledge or could not have been produced when the order was made. It does not suffice that the Court was unaware of a fact which the applicant could have presented. The caution expressed in D.J. Lowe & Company Ltd v Banque Indosuez and Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR therefore applies: review cannot ordinarily be used to repair an evidential omission without explaining why the evidence was unavailable earlier. 28. In its submissions, the Applicant describes the eventual withdrawal of donor support as sudden, unforeseen and subsequent to the ruling. A development arising after an order is different from the later discovery of evidence existing when that order was made. Its occurrence does not, by itself, satisfy the ground of discovery of new and important evidence. It may, however, require consideration under the residual ground of sufficient reason. 29. The Applicant has not sufficiently particularised the alleged withdrawal. It does not identify when support finally ceased, distinguish clearly between its earlier diminution and later cessation, or provide donor correspondence or other supporting material. The Court consequently lacks an adequate basis for determining the timing, extent and financial effect of the alleged change. 30. I have considered the explanation that the Applicant comprises subsistence farmers and does not maintain audited accounts or commercial financial records. Audited accounts are not the exclusive means of proving financial hardship. The Court must assess the evidence with regard to the Applicant’s nature and circumstances. 31. That consideration does not dispense with the need for a sufficiently detailed factual account. Neither affidavit discloses the Applicant’s available funds, receipts and expenditure, membership contributions, other resources, or efforts made to raise the deposit. Nor is there supporting material concerning the assistance allegedly withdrawn. The affidavits assert inability to comply but provide insufficient particulars to enable the Court to assess that assertion. 32. The members’ description as small-scale subsistence farmers and the assertion that their advocates act pro bono do not, without more, establish that the ordered security is beyond the Applicant’s reach. Conversely, cultivation of a substantial acreage and the existence of irrigation infrastructure do not necessarily establish financial capacity. The Court must resolve the question on evidence rather than either assumption. The Applicant has not supplied the necessary evidential foundation. 33. No mistake or error apparent on the face of the record has been demonstrated. The earlier ruling expressly considered the Applicant’s dependence on the land for livelihood, the Respondents’ competing interests, and the protective purpose of security. It settled on Kshs. 1,000,000/= rather than the Kshs. 3,000,000/= proposed by the Respondents. Page 5 of 7

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34. The fact that the amount was lower than the Respondents’ proposal does not conclusively establish its affordability. It does, however, show that the condition resulted from a deliberate exercise of discretion. The Applicant identifies no obvious computational mistake or other self-evident error. Its contention that the amount is excessive invites a reassessment of that discretion, which falls outside the ground explained in Nyamogo & Nyamogo Advocates v Kogo [2001] EA 174, Muyodi v Industrial and Commercial Development Corporation & another [2006] 1 EA 243 and National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR. 35. I turn to whether any other sufficient reason has been established. Following Wangechi Kimita v Wakibiru Mutahi [1985] eKLR and Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, I do not adopt the Respondents’ proposition that this ground must invariably be analogous to discovery of new evidence or an apparent error. The Court may consider whether a demonstrated material change makes variation appropriate. 36. Even on that broader inquiry, the application fails. The alleged deterioration in funding and its effect on the Applicant’s ability to comply have not been adequately established. The Court cannot determine that the condition has become impossible to fulfil merely from general assertions of hardship and the absence of full disclosure in the earlier application. 37. The Applicant also contends that retaining the condition would deny it the benefit of stay and undermine its opportunity to pursue the appeal. That concern must be considered alongside the Respondents’ entitlement to protection while execution is suspended. As explained in Arun C. Sharma v Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 others [2014] eKLR, security serves a protective purpose. It should not be punitive, but its removal must rest on a proper basis. 38. I have further considered the Applicant’s willingness to comply with reasonable conditions and its reference to non-monetary safeguards. Nduhiu Gitahi & another v Anna Wambui Warugongo [1988] KLR 621 permits security to take a form that adequately protects the opposite party while causing the least disadvantage to the party furnishing it. The Applicant has, however, identified no concrete alternative whose adequacy the Court can assess. A general willingness to accept other conditions does not establish that the Respondents would remain sufficiently protected if the Court dispensed with security. 39. The Applicant’s reliance on access to justice, proportionality and the overriding objective does not overcome these evidential shortcomings. Those considerations inform the exercise of discretion, but they do not substitute for proof of the circumstances said to justify review. 40. 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 application for review is therefore without merit and falls for dismissal. VII. Disposition Page 6 of 7

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41. For the foregoing reasons, the Notice of Motion dated 7th May 2026 is without merit and is hereby dismissed. 42. Costs naturally follow the event unless the Court orders otherwise for good reason. The Respondents have successfully opposed the application, and I find no sufficient reason to depart from that principle. The Applicant shall bear the costs of the application. It is so ordered. DATED, SIGNED AND DELIVERED IN GARISSA THIS 1ST DAY OF OCTOBER 2026. DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Mr. Mohammed Dabar (Court Assistant) Page 7 of 7

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