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ELCDismissedLand Case E015 of 2024· [2025] KEELC 834 (KLR)

Macharia v Maina & 3 others (Land Case E015 of 2024) [2025] KEELC 834 (KLR)

Environment and Land Court
19 February 2025
MKMUGO KAMAU
3,839 words in judgment
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The bottom line

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A Kenyan court dismissed a bid to review an injunction order, confirming that review is not a second chance to relitigate.

What this practically means

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Executive summary

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The 1st Defendant filed a Notice of Motion dated 23/1/2025 seeking review, vacation and setting aside of an order issued by Mugo Kamau J on 23/1/2025, which had granted the Plaintiff's injunction application dated 22/8/2024 over suit property LR 7675, I.R. 8682. The Applicant relied on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, contending the ruling had ignored his unopposed injunction application dated 18/11/2024, his Replying Affidavit and submissions, and that the file placed before the newly posted judge lacked relevant documents. The Plaintiff opposed, arguing the court could not sit on appeal on its own decision. Reviewing the procedural history, the court found that Justice Angima had directed on 25/11/2024 that a ruling date be fixed for the Plaintiff's application (which had already been heard) and that directions on the 1st Defendant's later application be given on 20/1/2025; the two applications were never ordered to be heard contemporaneously. The court held that no new and important matter had been discovered, no error apparent on the face of the record was shown, and no sufficient reason analogous to the statutory grounds existed; grievances such as an alleged breach of fair trial rights are matters of appeal, not review. The application was also fatally defective for failure to annex a formal extracted decree or order. The application was dismissed with costs.

Key legal issues

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01

Whether the 1st Defendant established any of the statutory grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

No ground was established: no discovery of new and important matter, no error apparent on the face of the record, and no sufficient reason analogous to the statutory grounds; the ruling complained of simply followed the directions of Justice Angima, and the 1st Defendant's application was not scheduled for hearing on 23/1/2025

Reasoning

The court traced the procedural history: the Plaintiff's application had been heard and a ruling date fixed per Justice Angima's directions, while the 1st Defendant's later application was only to be given directions on 20/1/2025. The 23/1/2025 ruling did not err by failing to decide the unlisted application. Review cannot be used as a substitute for appeal.

p. 7
02

Whether the review application was fatally defective for want of an annexed formal extracted decree or order

Holding

Yes; no Ruling/Order was attached, making the application fatally defective

Reasoning

Relying on Suleiman Murunga v Nilestar Holdings Limited, the court held that an applicant for review must annex a formal extracted decree or order in respect of which review is sought. The present application had no such order annexed, and was therefore irregularly in court.

p. 8

Legal principles established

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  • A court cannot sit on appeal against its own decision; grievances about a ruling are matters of appeal, not review
  • A formal extracted decree or order is a prerequisite for an application for review; failure to annex it renders the application fatally defective
  • Review applications will only be allowed on strong grounds because their effect would be to re-open the case afresh

Court orders

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  1. 1.The 1st Defendant's/Applicant's Application dated 23/1/2025 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Constitution of KenyaArticle 159(2)(a)
  • Constitution of KenyaArticle 10(2)(b)

Cases cited (8)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR
  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Tokesi Mambili and others vs Simion Litsanga
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
  • Evan Bwire V Andrew Aginda
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Suleiman Murunga V Nilestar Holdings Limited & Another
    (2015) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Macharia v Maina & 3 others (Land Case E015 of 2024) [2025] KEELC 834 (KLR)", Case Analysis (2025). Land Case E015 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/834/eng@2025-02-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.