Magdaline Jepkoech Chesang v John Kiprop Kurui

Koitoror/Tuiyoluk Block 1 (Koitoror)/297 erroneously registered in his name. d) That this Honourable court do recall the judgment of this court delivered on 25.9.24 owing to an inherent error with regards to erroneous registration and ground locations of parcels number Koitoror/Tuiyoluk Block 1 (Koitoror)/297 erroneously registered in favour of the Defendant and (Koitoror)/126 L.R No. registered Koitoror/Tuiyoluk in the name Block of 1 Wilson Kipkoech Kibor, the 1st Proposed interested party. e) That this court in furtherance of prayer (d) above do order the rectification of the registers of land parcels known as (Koitoror)/297 L.R No. and Koitoror/Tuiyoluk Koitoror/Tuiyoluk Block 1 Block 1 (Koitoror)/126 to the extent that the same be registered in the names of Wilson Kipkoech Kibor and John Kurui respectively in compliance with the allocation, use and occupation as identified by Kibor Arap Kabarak in 2003. f) That in the alternative to prayer (e) above, this court do order a retrial of this matter with regard only to the error on the above registration as provided by Order 45 rule 5 of the Civil Procedure Rules, 2010 g) That in the event that the court directs a retrial as per prayer (f), the proposed interested parties be granted leave to be enjoined in these proceedings ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 2

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h) That the costs of this application to abide the determination of this application. 2. The application is based on the grounds set out on the face of the Notice of Motion and the supporting affidavit of Magdaline Jepkoech Chesang, the Applicant herein. In the said affidavit she depones that the Defendant, proposed 1st Interested Party and herself are siblings by virtue of being the children of the late Kibor Arap Kabarak. Their late father was a shareholder of Koitoror Farmers Company Limited through which he acquired several parcels of land including Koitoror/Tuiyoluk Block 1 (Koitoror)/297 and Koitoror/Tuiyoluk Block 1 (Koitoror)/126 which are the subject of this application. 3. She further depones that her late father allocated all his children parcels of land and the Defendant was allocated parcel Number Koitoror/Tuiyoluk Block 1 (Koitoror)/297 measuring approximately 10 acres while the defendant was allocated Koitoror/Tuiyoluk Block 1 (Koitoror)/126. That parcel 297 was to be shared between the applicant, Defendant and their brother Philip Kurui in accordance with their father’s direction. 4. That the Applicant and her siblings were each shown their land and they took possession of their respective parcels and started utilizing them in 2003. However, in 2022, the Defendant forcefully took the Applicant’s share of land prompting her to institute this case. ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 3

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5. The court entered judgment in her favour and held that the Defendant was holding 5 acres of land parcel number Koitoror/Tuiyoluk Block 1 (Koitoror)/297 in trust for her. However, when they went to the ground with the surveyor to implement the judgment, they were shocked to discover that the parcel they believed to be Koitoror/Tuiyoluk Block 1 (Koitoror)/297 was erroneously registered as Koitoror/Tuiyoluk Block 1 (Koitoror)/126 hence the occupation on the ground did not correspond with the registered titles. This was confirmed by Koitoror Farmers Company Ltd who wrote a letter stating that they were informed by the County Surveyor and Land Registrar that there was an error in the Registry Index Map which swapped the parcel numbers and registered owners. 6. In the meantime, the Proposed 1 st Interested Party and her other brother Lawrence Kipkosgei Kibor sold portions of Koitoror/Tuiyoluk Block 1 (Koitoror)/297 to the 2nd -5ht Proposed Interested parties believing the same to be parcel number Koitoror/Tuiyoluk Block 1 (Koitoror)/126. 7. It is against the foregoing background that the Applicant prays that the court reviews its judgment by directing that the register of the two parcels be rectified to correspond with the occupation on the ground. In the alternative, the applicant prays that the court orders ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 4

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a re-trial based on the discovery of new facts which were not available at the time of the trial. 8. The application was met with opposition by the Defendant through his Grounds of Opposition dated 26.6.26 in which he raised the following grounds: i. That the application is misconceived, incompetent and an abuse of the court process as it seeks orders for review on the grounds of an error on the face of the record, an error which was known the parties throughout the subsistence of the matter up until the judgment. ii. The application seeks to litigate the matter afresh and is aimed at granting the Applicant an opportunity to amend her pleadings post judgment. iii. Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules sets the grounds for review as follows: a) Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or order made; b) Some mistake or error apparent on the face of the record or ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 5

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c) Any other sufficient reason iv. Consequently, the prayers sought in the application are legally untenable and premised on a fundamental misapprehension of the provisions of the law. v. By the Applicant seeking an order that this court orders rectification of the register to suit her case it is akin to asking this court to sit on appeal on its own decision when it is clearly functus officio. vi. The application does not meet the threshold for grant of the orders sought. The Applicant has not demonstrated that she has discovered new and important evidence as envisaged under Order 45 of the Civil Procedure Rules. 9. The application was canvassed through written submissions and both parties filed their submissions which I have considered. ANALYSIS AND DETERMINATION 10. I have carefully considered the application and Grounds of Opposition. I have also perused the proceedings and judgment and the main issue for determination is whether the Applicant has satisfied the conditions for review and if so, whether the prayers sought should be granted. ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 6

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11. Section 80 of the Civil Procedure Act Cap 21 Laws of Kenya states: “Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 12. Order 45 Rule 1 of the Civil Procedure Rules, provides as follows: “(1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 7

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was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 13. The question I must ask myself is whether the reasons given by the Applicant fall within the parameters for review provided by section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules. 14. The Applicant’s main reason for seeking a review is what she terms and inherent error with regards to the erroneous registration and ground location of parcels number Koitoror/Tuiyoluk Block 1 ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 8

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(Koitoror)/297 registered in the name of the Defendant and parcel number Koitoror/Tuiyoluk Block 1 (Koitoror)/126 registered in the nameof Wilson Kipkoech Kibor, the proposed 1 st Interested Party. The portion of land that the Applicant is claiming and which she believed was land parcel no. Koitoror/Tuiyoluk Block 1 (Koitoror)/297 registered in the name of the Defendant is actually land parcel No. Koitoror/Tuiyoluk Block 1 (Koitoror)/126 registered in the name of the Proposed interested Party according to the occupation on the ground. 15. The revelation that by Koitoror Farmers Company Ltd that they learnt from the County Surveyor that the two parcels number were swapped at the time of registration shows that there was an error but not the kind contemplated under Order 45 Rule of the Civil Procedure Rules. This is because the issue of the ground location of the two parcels never arose during the hearing and therefore it does not constitute and error apparent on the face of the record. 16. Furthermore, inviting the court to order rectification of the register for the two titles is something that is beyond the scope of a review as it affects the rights of persons who were not party to the original suit. The scope of review is circumscribed by the law and a review is not intended to introduce a new cause of action and new parties to a concluded suit as this would alter the character of the ELDORET ELC CASE NO E02 OF 2022 (RULING) Page 9

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case. In the circumstances the court is unable to review its judgment. 17. Having declined to review the judgment I do not find it necessary to delve into the issue of injunction or joinder of new parties. 18. In view of the foregoing, the application for review lacks merit and it is hereby dismissed with no order as to costs. Dated signed and delivered virtually this 6th day of October 2026. ………………… J.M ONYANGO JUDGE In the presence of: 1.Mr. Kipsamo for Ms Isiaho for the Plaintiff/Applicant 2. Mr. Ngeno for Mr. Koech for the Defendant/Respondent. Court Assistant: Happy ELDORET ELC CASE NO E02 OF 2022 (RULING) 10 Page

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