The Application
Ipitieti Ole Kilongu alias Ipite Ole Kiloku chairman and others have come to court with the application dated 17th November 2025 seeking an order that:-
1. Spent
2. Spent
3. Honorable Court be pleased to review and vary its ruling delivered on 14th November 2025 on account of mistake or error apparent on the face c' the record, or for any other sufficient reason and set aside the finding for the cancellation/revoking of the individual titles issued to Applicants and 0ther beneficiaries as per the said ruling after complying with the terms of t} judgment delivered on 16th October 2024.
4. Costs of this application be provided for.
The application is based on grounds that on 16th October 2024, this honourable court delivered its judgment in the terms of a declaration that the 1st Plaintiff is a beneficiary of Land Parcels Maela/Ndabibi Block 5/ 2253 and 3073. An order was issued that the Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled. It was was further ordered that the Title Deeds to land parcel Maela/Ndabibi Block 5/2253 and 3073 be issued to the 17 Defendants vide H.C.C.C 89 of 1996 to hold in trust of themselves and all the beneficiaries. The cost of the suit and interest thereof at court rates was awarded to the Plaintiffs against the 1st to 6th Defendants. The Plaintiffs/Applicants extracted the decree herein and served it upon the 7th Respondent herein for compliance. The applicant contends that on 7th November 2024 in compliance of this court's judgment, the 7th Respondent issued a title deed in the names of the 17 Defendants in HCCC No 89 of 1996 as directed by the court.
The 1st to 6th Respondents filed a certificate of urgency application dated 14th seeking to cite the Applicants herein for contempt of court and also seeking review orders. The said application was heard and this court delivered its ruling on 14th November 2025 and held that
Contempt of court proceedings are quasi criminal proceedings that should be brought against the person in office but not the office. The court found that the application for contempt had no merit as it did not cite the person who disobeyed the court order. The third prayer for the cancellation of the titles issued to the individual members pursuant to the judgment delivered on 16th October 2024 was found with merit because the title deeds were issued in contempt of the court order hence that court ordered that the title deeds issued to individual members pursuant to the judgment delivered on 16th October, 2024 be revoked and/or cancelled for failure to abide with the judgment and/or legal procedure, especially title deed known as Maela/Ndabibi Block 5/3156 measuring approximately 0.0464Ha issued to Ntenayio Ole Koroi. After considering the application this court came to a finding that the Applicants were not in contempt of the court orders.
According to the applicant, this court grossly erred by issuing an order for cancellation of the titles issued to individual members pursuant to the judgment of the court delivered on 16th October 2024 whereas there was no order for the same in the said judgment and decree. This court erred in law by issuing substantive orders of cancellation of titles issues to individual members through an application. This court erred by cancelling title deeds issued to individuals without a substantive suit despite the said titles being issued procedurally. The court in its ruling canceled individual titles for several persons without giving them a fair hearing or without interrogating the procedure of the issuance of the said titles. The court in its ruling erred by condemning individuals who had their own titles unheard. The court erred by failing to consider the Applicants responses. The above-mentioned errors amount to errors on the face of the ruling which ought to be reviewed to the extent that the order cancelling individual titles be set aside.
The applicants contend that there is clearly an error apparent on the face of the record which ought to be rectified to reflect the correct position as required by law and to preserve individual ownership and constitutional rights which will cause an injustice to them.
According to the applicants, the respondent might move anytime to cancel the said titles which action will greatly prejudice the applicants and other beneficiaries as their right to property will be alienated. The application has been brought without any inordinate delay after noticing the said error. The application for review has merit and the respondents herein will not be prejudiced in any manner if the application for review is allowed. It is in the interest of justice that the orders sought herein be granted for the interest of justice. The supporting affidavit reiterates the grounds of the application.
The Responce
The application is opposed by the respondents who filed a replying affidavit sworn by Lekinshon Ole Linti stating that he was the 1st Defendant in H.C.C C 89 of 1996 and following the judgment of the court delivered on 16th October, 2024, he was among the 17 defendants though he did not authorize the subdivision or transfer of any title. He states that the applicant has admitted under oath, at paragraph 7 of their Affidavit that they held a meeting where they purportedly resolved to implement the judgment and thereafter proceeded to issue individual titles.
He contends that the applicants were equally granted costs following the judgment delivered on 16th October, 2024, however, following their actions, they are not even deserving of the said costs and he prays that the said costs awarded to them be cancelled.
He states that the Applicant is insisting that the titles obtained were good titles, yet they have failed to demonstrate or explain several critical elements that this Honorable Court ought to consider, including but not limited to (a). Who are these seventeen defendants listed on the green card noting the fact that eight on them are now deceased. (b). Whether the relevant land control board consents were obtained for subdivision of the parcel of lands. (c).Who signed the transfer forms of the individual titles (d). How did the Applicants obtain the titles contrary to the clear judgement of the court delivered on 15h October, 2024.
Despite having obtained judgment on 16th October, 2024, the Applicants misled the 7th Respondent into issuing title deeds without following due process. This Honorable Court saw through the mischief and rightly cancelled the titles. The initial titles that were cancelled by this Honorable Court were Maella/Ndabibi Block 5/2253 and Maella/Ndabibi Block '13073 which were registered in the names of four and six people respectively.
Owing to the discrepancies in the ruling delivered on 14th November, 2025, the respondents sought review only to the extent of prayer number 6 of the Application dated 14th July, 2025, so that this Honorable Court may address the issues arising from the judgment delivered on 16th October, 2024, namely the issue of seventeen defendants who some of whom are now deceased and the issue of the beneficiaries whose land is to be held in trust.
It is imperative that this Honorable Court reviews the judgment delivered on 16th October, 2024 to prevent persons who were not beneficiaries from attempting to benefit from the HCCC no 89 of 1996 judgment. This requires the Court to ascertain the true beneficiaries once and for all. In the event the issue of beneficiaries is not ascertained, then there may be a ripple effect of the likes of the 2nd -6th Applicants who would be bringing suits to be included as beneficiaries.
Rival Submissions
The applicant submits that the law on review is well settled as provided for under section 80 and 63 (e) of the Civil Procedure Act and Order 45 Rule I of the Civil Procedure Rules which provide as follows:
"Section 80. Review
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."
The applicant cites Order 45, rule 1.1 of the Civil Procedure Act which provides that :-
(l) 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, 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'r
According to the applicant, superior courts have interpreted and applied the above provisions and principles in several decisions. The applicant cites the case of Muyodi vs. Industrial and Commercial Development Corporation Another [20061 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:
...In Nyamogo&Nyamogo -vs- Kogo (2001) EA 774 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law js indeed applicable in the matter before us.”
The applicant further cites the ruling of Mativo J in Stephen Gathua Kimani -vs- Nancy Wanjira Waruingi T/A Providence Auctioneers [201 61 eKLR cited the case of Ajit Kumar Rath -vs- The State of Orisa & Others, 9 Supreme Court Case 596: and opined as follows: -
"Discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others had this to say: -
"The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule."
The applicant further relies on the case of Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya after analyzing decided cases on the subject, the judge discerned the following principles which are relevant in applications for review: -
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 7 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
vi. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 7.
x. The power of a civil court to review its judgment/decision is traceable jn Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule T.
The applicant further cites Civil Appeal No. 21 1 J of 7996. National Bank of Kenya VsNdunquNiau, the Court of Appeal held that;
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evidence and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law".
The application before this court is seeking to review of the court's ruling delivered on 1 4th November 2025 where the court ordered as follows:
“The third prayer for the cancellation of the titles issued to the individual members pursuant to the ludqment delivered on 16th October 2024 has merit because the title deeds were issued in contempt of the court order herein and therefore I do order that the title deeds issued to individual members pursuant to the iudqment delivered on 16 th October, 2024 be. and are hereby, revoked and/or cancelled for failure to abide with the iudqment and/or leqal procedure, especially title deed known as Maela/Ndabibi Block 5/3156 measurinq approximately 0.0464Ha issued to Ntenayio Ole Koroi”
According to the respondent this court delivered its judgment on 16th October 2024 and issued decree where it ordered that a declaration be issued that the 1st Plaintiff is a beneficiary of Land Parcels Maela/Ndabibi Block 5/ 2253 and 3073 and that an order was issued that the Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled. It was further ordered that the Title Deeds to land parcel Maela/Ndabibi Block 5/2253 and 3073 be issued to the 7 Defendants vide H.C.C.C 89 of 7996 to hold in trust of themselves and all the beneficiaries.
That in obedience of the said judgment, the applicants served the decree upon the land registrar who proceeded to act in compliance of the said decree. On 7TH November 2024, the land registrar issued a title in compliance with the orders of the court herein where it issued a title deed in the names of the 17 Defendants in Nakuru HCCC No 89 of 1 996 as directed by this court. This compliance is evidenced by the green card to land parcel Maela/Ndabibi Block 5/2253. The green card clearly shows that a title was issued in the name of Ipitiet Ole Kilongu & 16 others. The Respondents have admitted to this fact that a title was issued as directed by the court, their only contention is the identity of seventeen people. The 17 Defendant in Nakuru HCCC No. 89 of 1996 are well known and therefore the 1st Respondent's allegations are untrue.
The land registrar in his replying affidavit stated that since the seventeen names could not fit in the title, they issued the title as evidenced in the green card which was in compliance of this court's judgment. The court in its ruling delivered on 14th November 2025 ruled that "The third prayer for the cancellation of the titles issued to the individual members pursuant to the judgment delivered on 16th October 2024 has merit because the title deeds were issued in contempt of the court order herein and therefore I do order that the title deeds issued to individual members pursuant to the judgment delivered on 16th October. 2024 be and are hereby, revoked and/or cancelled for failure to abide with the judgment and/or legal procedure especially title deed known as Maela/Ndabibi Block 5/3156 measurinq approximately 0.0464Ha issued to Ntenayio Ole Koroi.
According to the applicant this is an outright error on the face of the ruling as no individual title was issued pursuant to the judgment of the court herein. The Land Registrar issued a title in compliance with the judgment and decree of this court where the members again resolved to have their own individual titles. This resolution was in no way against the decision of the court herein. The Judgment of the court delivered on 16th October 2024 was to the extent that the Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled. Which was done as evidenced in the green card. The judgment did not afterward bar the members from processing their individual titles which progress the Respondents herein have been hindering.
That the individual titles were not issued in contempt of the court's judgment delivered on 16th October 2024, but they were issued after compliance of the decree of this court. The individual title was issued pursuant to the resolution of the members vide a meeting held on 4th November 2024 where members resolved to have individual titles. This act was not in contempt of the court's judgment and as such the court's decision that the said act was in contempt of court is erroneous. The court had earlier held that there was no contempt of court and as such the said decision is also in conflict of the court's earlier finding.
Further, the applicants argue that this court erred by canceling members' titles through an application and without according them an opportunity to be heard. Cancellation of a title is a substantive prayer which ought to be granted in a full hearing and not through an application. By doing so, this court condemned the several individual members who had been issued with their individual titles which actions are prejudicial to their individual right to property. If the said orders are not set aside, it will open a floodgate of civil suits challenging the said ruling by the individual members whose titles have been ordered to be canceled. Further the said ruling alienated the individuals' right to property without according them a chance to be heard.
The respondent on his part submits that the Application is a calculated attempt to sanitize blatant illegality, disobedience of court orders, and fraudulent acquisition of titles through the back door. The Applicants, having openly defied the judgment of this Honorable Court delivered on 16th October, 2024, now seek the Court's indulgence to shield them from the consequences of their own misconduct. This Court is urged to decisively reject the Application and reaffirm its supervisory and constitutional mandate to protect the sanctity of land titles and the authority of court orders.
The respondents argue that from the outset, the Application is frivolous, vexatious, and a gross abuse of the process of this Honourable Court. This Court has consistently held that its judgments are not mere suggestions. Parties who elect to disobey them cannot later seek refuge in the same Court. The conduct of the applicants’ amount to open defiance of court orders and squarely places the Applicants in contempt of court. The Applicants' insistence that the titles obtained were "good titles" is legally untenable and borders on contemptuous arrogance.
The Respondent challenges the Applicants to demonstrate who the seventeen defendants listed on the green card were, noting that at least eight are deceased and the 5th Defendant herein also passed on making the number to rise to nine and whether valid Land Control Board consents were obtained for subdivision and transfer as required under the Land Control Act; Who executed the transfer instruments, how the 2nd—6th Applicants acquired titles contrary to the clear judgment of 16th October, 2024 which clearly stated that only the 1 st Plaintiff proved to be a beneficiary of the land parcel number Maela/Ndabibi Block 5/2253 and 3073.
The respondents refer to Atthi Highway Developers Ltd v West End Butchery Ltd & Others [2015] eKLR, the Court of Appeal held that title obtained through an illegal process is not protected in law. Similarly, in Munyu Maina v Hiram Gathiha Maina [201 3] eKLR, the Court held that where the root of title is challenged, the proprietor must go beyond the instrument of title and demonstrate legality. The Applicants have spectacularly failed this test.
The respondents contend that despite full knowledge that several of the seventeen defendants were deceased, the Applicants nonetheless proceeded to mislead the 7th Respondent into issuing titles. This fact was admitted in their affidavit dated 11th February, 2025, where they proposed registration of the remaining eleven as trustees. This conduct was deceptive, dishonest, and calculated to defeat the due process of the law. Equity does not aid the indolent, nor does it protect the dishonest.
The respondents argue that the 7th Respondent, in her Replying Affidavit dated 8th October, 2025 confirmed under oath that the Seventeen defendants were not disclosed and that the seventeen persons could not lawfully be included in one title. She sought review to allow registration of only four to five persons and that this sworn evidence independently corroborates the Respondent's position and demolishes the Applicants' case entirety. On costs, the respondent argues that although the Applicants were awarded costs following the judgment of 16th October, 2024, their subsequent conduct disentitles them to any benefit of such costs. The Respondent urges this Honourable Court to Cancel the costs awarded to the Applicants; Condemn the Applicants to bear the costs of this Application; Issue appropriate directions to prevent further abuse of the Court process.
The Respondent therefore prays that the Application dated 17th November, 2025 be dismissed in its entirety and the cancellation of the impugned titles be upheld; The Applicants be condemned to bear the costs of the Application.
Analysis and Determination
The law
The review orders sought are premised on the provisions of Order 45 rules 1 and 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. Order 45 Rule 1 provides:-
“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 form the discovery of new and important matter or evidence which after the exercise of the diligence, 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 an account of some mistake or error ….on the face of the record, or for any other sufficient reasons, deserves to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay.”
Section 80 of the Civil Procedure Act is basically in all fours with orders 45 rules 1 and 2 and provides:-
“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 thresh as it thinks fit.”
I have considered the rival submission and do find that this court has a duty to ensure that the registered owners of land have the right to be heard before an order cancelling their titles is issued. There is an error apparent on record in this matter thus that the registered owners of the cancelled titles were not heard before their titles were cancelled. In this case, I do observe that the issue of cancellation of the new titles stems from a new cause of action post judgment that can be litigated through a new suit and not by an application for contempt of court. Moreover, the principle of functus officio should be adhered as litigation must come to an end and therefore the court having determined the issue of ownership it became funtus officio. Lastly, having found that the application for contempt had no merit and the application before me having been for contempt of court, I do find that there are sufficient reasons to review the order made on 14th November 2025. I do allow the application and do review and vary the court’s ruling delivered on 14th November 2025 on account of error apparent on the face of record as the holders of the cancelled titles were not heard and that those are sufficient reasons to set aside the finding for the cancellation/revoking of the individual titles issued to applicants and other beneficiaries. The upshot of the above is that the application is allowed. I do hereby aside the finding for the cancellation/revoking of the individual titles issued to applicants and other beneficiaries. Orders accordingly.
Ipitieti Ole Kilongu alias Ipite Ole Kiloku chairman and others have come to court with the application dated 17th November 2025 seeking an order that:-
1. Spent
2. Spent
3. Honorable Court be pleased to review and vary its ruling delivered on 14th November 2025 on account of mistake or error apparent on the face c' the record, or for any other sufficient reason and set aside the finding for the cancellation/revoking of the individual titles issued to Applicants and 0ther beneficiaries as per the said ruling after complying with the terms of t} judgment delivered on 16th October 2024.
4. Costs of this application be provided for.
The application is based on grounds that on 16th October 2024, this honourable court delivered its judgment in the terms of a declaration that the 1st Plaintiff is a beneficiary of Land Parcels Maela/Ndabibi Block 5/ 2253 and 3073. An order was issued that the Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled. It was was further ordered that the Title Deeds to land parcel Maela/Ndabibi Block 5/2253 and 3073 be issued to the 17 Defendants vide H.C.C.C 89 of 1996 to hold in trust of themselves and all the beneficiaries. The cost of the suit and interest thereof at court rates was awarded to the Plaintiffs against the 1st to 6th Defendants. The Plaintiffs/Applicants extracted the decree herein and served it upon the 7th Respondent herein for compliance. The applicant contends that on 7th November 2024 in compliance of this court's judgment, the 7th Respondent issued a title deed in the names of the 17 Defendants in HCCC No 89 of 1996 as directed by the court.
The 1st to 6th Respondents filed a certificate of urgency application dated 14th seeking to cite the Applicants herein for contempt of court and also seeking review orders. The said application was heard and this court delivered its ruling on 14th November 2025 and held that
Contempt of court proceedings are quasi criminal proceedings that should be brought against the person in office but not the office. The court found that the application for contempt had no merit as it did not cite the person who disobeyed the court order. The third prayer for the cancellation of the titles issued to the individual members pursuant to the judgment delivered on 16th October 2024 was found with merit because the title deeds were issued in contempt of the court order hence that court ordered that the title deeds issued to individual members pursuant to the judgment delivered on 16th October, 2024 be revoked and/or cancelled for failure to abide with the judgment and/or legal procedure, especially title deed known as Maela/Ndabibi Block 5/3156 measuring approximately 0.0464Ha issued to Ntenayio Ole Koroi. After considering the application this court came to a finding that the Applicants were not in contempt of the court orders.
According to the applicant, this court grossly erred by issuing an order for cancellation of the titles issued to individual members pursuant to the judgment of the court delivered on 16th October 2024 whereas there was no order for the same in the said judgment and decree. This court erred in law by issuing substantive orders of cancellation of titles issues to individual members through an application. This court erred by cancelling title deeds issued to individuals without a substantive suit despite the said titles being issued procedurally. The court in its ruling canceled individual titles for several persons without giving them a fair hearing or without interrogating the procedure of the issuance of the said titles. The court in its ruling erred by condemning individuals who had their own titles unheard. The court erred by failing to consider the Applicants responses. The above-mentioned errors amount to errors on the face of the ruling which ought to be reviewed to the extent that the order cancelling individual titles be set aside.
The applicants contend that there is clearly an error apparent on the face of the record which ought to be rectified to reflect the correct position as required by law and to preserve individual ownership and constitutional rights which will cause an injustice to them.
According to the applicants, the respondent might move anytime to cancel the said titles which action will greatly prejudice the applicants and other beneficiaries as their right to property will be alienated. The application has been brought without any inordinate delay after noticing the said error. The application for review has merit and the respondents herein will not be prejudiced in any manner if the application for review is allowed. It is in the interest of justice that the orders sought herein be granted for the interest of justice. The supporting affidavit reiterates the grounds of the application.
The Responce
The application is opposed by the respondents who filed a replying affidavit sworn by Lekinshon Ole Linti stating that he was the 1st Defendant in H.C.C C 89 of 1996 and following the judgment of the court delivered on 16th October, 2024, he was among the 17 defendants though he did not authorize the subdivision or transfer of any title. He states that the applicant has admitted under oath, at paragraph 7 of their Affidavit that they held a meeting where they purportedly resolved to implement the judgment and thereafter proceeded to issue individual titles.
He contends that the applicants were equally granted costs following the judgment delivered on 16th October, 2024, however, following their actions, they are not even deserving of the said costs and he prays that the said costs awarded to them be cancelled.
He states that the Applicant is insisting that the titles obtained were good titles, yet they have failed to demonstrate or explain several critical elements that this Honorable Court ought to consider, including but not limited to (a). Who are these seventeen defendants listed on the green card noting the fact that eight on them are now deceased. (b). Whether the relevant land control board consents were obtained for subdivision of the parcel of lands. (c).Who signed the transfer forms of the individual titles (d). How did the Applicants obtain the titles contrary to the clear judgement of the court delivered on 15h October, 2024.
Despite having obtained judgment on 16th October, 2024, the Applicants misled the 7th Respondent into issuing title deeds without following due process. This Honorable Court saw through the mischief and rightly cancelled the titles. The initial titles that were cancelled by this Honorable Court were Maella/Ndabibi Block 5/2253 and Maella/Ndabibi Block '13073 which were registered in the names of four and six people respectively.
Owing to the discrepancies in the ruling delivered on 14th November, 2025, the respondents sought review only to the extent of prayer number 6 of the Application dated 14th July, 2025, so that this Honorable Court may address the issues arising from the judgment delivered on 16th October, 2024, namely the issue of seventeen defendants who some of whom are now deceased and the issue of the beneficiaries whose land is to be held in trust.
It is imperative that this Honorable Court reviews the judgment delivered on 16th October, 2024 to prevent persons who were not beneficiaries from attempting to benefit from the HCCC no 89 of 1996 judgment. This requires the Court to ascertain the true beneficiaries once and for all. In the event the issue of beneficiaries is not ascertained, then there may be a ripple effect of the likes of the 2nd -6th Applicants who would be bringing suits to be included as beneficiaries.
Rival Submissions
The applicant submits that the law on review is well settled as provided for under section 80 and 63 (e) of the Civil Procedure Act and Order 45 Rule I of the Civil Procedure Rules which provide as follows:
"Section 80. Review
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."
The applicant cites Order 45, rule 1.1 of the Civil Procedure Act which provides that :-
(l) 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, 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'r
According to the applicant, superior courts have interpreted and applied the above provisions and principles in several decisions. The applicant cites the case of Muyodi vs. Industrial and Commercial Development Corporation Another [20061 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:
...In Nyamogo&Nyamogo -vs- Kogo (2001) EA 774 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law js indeed applicable in the matter before us.”
The applicant further cites the ruling of Mativo J in Stephen Gathua Kimani -vs- Nancy Wanjira Waruingi T/A Providence Auctioneers [201 61 eKLR cited the case of Ajit Kumar Rath -vs- The State of Orisa & Others, 9 Supreme Court Case 596: and opined as follows: -
"Discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others had this to say: -
"The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule."
The applicant further relies on the case of Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya after analyzing decided cases on the subject, the judge discerned the following principles which are relevant in applications for review: -
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 7 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
vi. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 7.
x. The power of a civil court to review its judgment/decision is traceable jn Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule T.
The applicant further cites Civil Appeal No. 21 1 J of 7996. National Bank of Kenya VsNdunquNiau, the Court of Appeal held that;
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evidence and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law".
The application before this court is seeking to review of the court's ruling delivered on 1 4th November 2025 where the court ordered as follows:
“The third prayer for the cancellation of the titles issued to the individual members pursuant to the ludqment delivered on 16th October 2024 has merit because the title deeds were issued in contempt of the court order herein and therefore I do order that the title deeds issued to individual members pursuant to the iudqment delivered on 16 th October, 2024 be. and are hereby, revoked and/or cancelled for failure to abide with the iudqment and/or leqal procedure, especially title deed known as Maela/Ndabibi Block 5/3156 measurinq approximately 0.0464Ha issued to Ntenayio Ole Koroi”
According to the respondent this court delivered its judgment on 16th October 2024 and issued decree where it ordered that a declaration be issued that the 1st Plaintiff is a beneficiary of Land Parcels Maela/Ndabibi Block 5/ 2253 and 3073 and that an order was issued that the Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled. It was further ordered that the Title Deeds to land parcel Maela/Ndabibi Block 5/2253 and 3073 be issued to the 7 Defendants vide H.C.C.C 89 of 7996 to hold in trust of themselves and all the beneficiaries.
That in obedience of the said judgment, the applicants served the decree upon the land registrar who proceeded to act in compliance of the said decree. On 7TH November 2024, the land registrar issued a title in compliance with the orders of the court herein where it issued a title deed in the names of the 17 Defendants in Nakuru HCCC No 89 of 1 996 as directed by this court. This compliance is evidenced by the green card to land parcel Maela/Ndabibi Block 5/2253. The green card clearly shows that a title was issued in the name of Ipitiet Ole Kilongu & 16 others. The Respondents have admitted to this fact that a title was issued as directed by the court, their only contention is the identity of seventeen people. The 17 Defendant in Nakuru HCCC No. 89 of 1996 are well known and therefore the 1st Respondent's allegations are untrue.
The land registrar in his replying affidavit stated that since the seventeen names could not fit in the title, they issued the title as evidenced in the green card which was in compliance of this court's judgment. The court in its ruling delivered on 14th November 2025 ruled that "The third prayer for the cancellation of the titles issued to the individual members pursuant to the judgment delivered on 16th October 2024 has merit because the title deeds were issued in contempt of the court order herein and therefore I do order that the title deeds issued to individual members pursuant to the judgment delivered on 16th October. 2024 be and are hereby, revoked and/or cancelled for failure to abide with the judgment and/or legal procedure especially title deed known as Maela/Ndabibi Block 5/3156 measurinq approximately 0.0464Ha issued to Ntenayio Ole Koroi.
According to the applicant this is an outright error on the face of the ruling as no individual title was issued pursuant to the judgment of the court herein. The Land Registrar issued a title in compliance with the judgment and decree of this court where the members again resolved to have their own individual titles. This resolution was in no way against the decision of the court herein. The Judgment of the court delivered on 16th October 2024 was to the extent that the Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled. Which was done as evidenced in the green card. The judgment did not afterward bar the members from processing their individual titles which progress the Respondents herein have been hindering.
That the individual titles were not issued in contempt of the court's judgment delivered on 16th October 2024, but they were issued after compliance of the decree of this court. The individual title was issued pursuant to the resolution of the members vide a meeting held on 4th November 2024 where members resolved to have individual titles. This act was not in contempt of the court's judgment and as such the court's decision that the said act was in contempt of court is erroneous. The court had earlier held that there was no contempt of court and as such the said decision is also in conflict of the court's earlier finding.
Further, the applicants argue that this court erred by canceling members' titles through an application and without according them an opportunity to be heard. Cancellation of a title is a substantive prayer which ought to be granted in a full hearing and not through an application. By doing so, this court condemned the several individual members who had been issued with their individual titles which actions are prejudicial to their individual right to property. If the said orders are not set aside, it will open a floodgate of civil suits challenging the said ruling by the individual members whose titles have been ordered to be canceled. Further the said ruling alienated the individuals' right to property without according them a chance to be heard.
The respondent on his part submits that the Application is a calculated attempt to sanitize blatant illegality, disobedience of court orders, and fraudulent acquisition of titles through the back door. The Applicants, having openly defied the judgment of this Honorable Court delivered on 16th October, 2024, now seek the Court's indulgence to shield them from the consequences of their own misconduct. This Court is urged to decisively reject the Application and reaffirm its supervisory and constitutional mandate to protect the sanctity of land titles and the authority of court orders.
The respondents argue that from the outset, the Application is frivolous, vexatious, and a gross abuse of the process of this Honourable Court. This Court has consistently held that its judgments are not mere suggestions. Parties who elect to disobey them cannot later seek refuge in the same Court. The conduct of the applicants’ amount to open defiance of court orders and squarely places the Applicants in contempt of court. The Applicants' insistence that the titles obtained were "good titles" is legally untenable and borders on contemptuous arrogance.
The Respondent challenges the Applicants to demonstrate who the seventeen defendants listed on the green card were, noting that at least eight are deceased and the 5th Defendant herein also passed on making the number to rise to nine and whether valid Land Control Board consents were obtained for subdivision and transfer as required under the Land Control Act; Who executed the transfer instruments, how the 2nd—6th Applicants acquired titles contrary to the clear judgment of 16th October, 2024 which clearly stated that only the 1 st Plaintiff proved to be a beneficiary of the land parcel number Maela/Ndabibi Block 5/2253 and 3073.
The respondents refer to Atthi Highway Developers Ltd v West End Butchery Ltd & Others [2015] eKLR, the Court of Appeal held that title obtained through an illegal process is not protected in law. Similarly, in Munyu Maina v Hiram Gathiha Maina [201 3] eKLR, the Court held that where the root of title is challenged, the proprietor must go beyond the instrument of title and demonstrate legality. The Applicants have spectacularly failed this test.
The respondents contend that despite full knowledge that several of the seventeen defendants were deceased, the Applicants nonetheless proceeded to mislead the 7th Respondent into issuing titles. This fact was admitted in their affidavit dated 11th February, 2025, where they proposed registration of the remaining eleven as trustees. This conduct was deceptive, dishonest, and calculated to defeat the due process of the law. Equity does not aid the indolent, nor does it protect the dishonest.
The respondents argue that the 7th Respondent, in her Replying Affidavit dated 8th October, 2025 confirmed under oath that the Seventeen defendants were not disclosed and that the seventeen persons could not lawfully be included in one title. She sought review to allow registration of only four to five persons and that this sworn evidence independently corroborates the Respondent's position and demolishes the Applicants' case entirety. On costs, the respondent argues that although the Applicants were awarded costs following the judgment of 16th October, 2024, their subsequent conduct disentitles them to any benefit of such costs. The Respondent urges this Honourable Court to Cancel the costs awarded to the Applicants; Condemn the Applicants to bear the costs of this Application; Issue appropriate directions to prevent further abuse of the Court process.
The Respondent therefore prays that the Application dated 17th November, 2025 be dismissed in its entirety and the cancellation of the impugned titles be upheld; The Applicants be condemned to bear the costs of the Application.
Analysis and Determination
The law
The review orders sought are premised on the provisions of Order 45 rules 1 and 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. Order 45 Rule 1 provides:-
“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 form the discovery of new and important matter or evidence which after the exercise of the diligence, 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 an account of some mistake or error ….on the face of the record, or for any other sufficient reasons, deserves to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay.”
Section 80 of the Civil Procedure Act is basically in all fours with orders 45 rules 1 and 2 and provides:-
“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 thresh as it thinks fit.”
I have considered the rival submission and do find that this court has a duty to ensure that the registered owners of land have the right to be heard before an order cancelling their titles is issued. There is an error apparent on record in this matter thus that the registered owners of the cancelled titles were not heard before their titles were cancelled. In this case, I do observe that the issue of cancellation of the new titles stems from a new cause of action post judgment that can be litigated through a new suit and not by an application for contempt of court. Moreover, the principle of functus officio should be adhered as litigation must come to an end and therefore the court having determined the issue of ownership it became funtus officio. Lastly, having found that the application for contempt had no merit and the application before me having been for contempt of court, I do find that there are sufficient reasons to review the order made on 14th November 2025. I do allow the application and do review and vary the court’s ruling delivered on 14th November 2025 on account of error apparent on the face of record as the holders of the cancelled titles were not heard and that those are sufficient reasons to set aside the finding for the cancellation/revoking of the individual titles issued to applicants and other beneficiaries. The upshot of the above is that the application is allowed. I do hereby aside the finding for the cancellation/revoking of the individual titles issued to applicants and other beneficiaries. Orders accordingly.