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ELCDismissedKericho Environment and Land Case (appeal from Kericho CMCC) - not stated in full in the judgment· [2025] KEELC 1189 (KLR)

Ngeno v Mosonik (Environment and Land Appeal E001 of 2022) [2025] KEELC 1189 (KLR)

Environment and Land Court
13 March 2025
3,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho land court refused to change its costs decision on review, confirming that unhappy parties must appeal, not ask the judge to rethink.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined a Notice of Motion dated 22nd May 2024 by the Respondent/Applicant seeking review of the last sentence of the court's judgment of 16th May 2024, so that costs of the appeal and the subordinate court suit would be awarded to him rather than to the Appellant/Respondent. The application was brought under Sections 1A, 1B, 3A, 80, 99 and 100 of the Civil Procedure Act and Order 45 and Order 51 Rule 1 of the Civil Procedure Rules, founded on the 'slip rule' and an alleged error apparent on the face of the record. The applicant argued that costs follow the event; the trial magistrate had awarded him costs taxed at Kshs. 307,195/-, and the court on appeal had upheld the trial judgment save for setting aside the award of mesne profits, so he was the successful party and could not be condemned to pay costs. He also claimed counsel was informed on 16th May 2024 that costs had been awarded to him. The Appellant/Respondent countered that the appeal achieved partial success (the mesne profits award of Kshs. 1,104,000/- was set aside), that costs were a discretionary consequence of that partial success, and that the application was a disguised appeal. The court framed a single issue: whether it should review its judgment. Relying on the Supreme Court's decision in Outa v Okello and the Court of Appeal in Muyodi v ICDC, it held that an error apparent on the face of the record must be self-evident, not one established by reasoning; the applicant's real complaint was that the judgment was erroneous, which is a ground of appeal and not review. The court record showed the applicant's counsel was absent when judgment was delivered online, contradicting his assertion. The application was dismissed with costs.

Key legal issues

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Whether the judgment of 16th May 2024 contained an error apparent on the face of the record justifying review of the costs order

Holding

No. The applicant's complaint was that the judgment was erroneous in awarding costs to the Appellant/Respondent despite the applicant having succeeded at trial; that is a ground of appeal, not review.

Reasoning

The court reiterated that review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 is confined to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. Citing the Supreme Court in Outa v Okello and the Court of Appeal in Muyodi v ICDC, it held that an error apparent must be self-evident, not one requiring reasoning. The applicant's assertion that counsel was told costs were awarded to him was contradicted by the court record showing counsel was absent ('N/A for the Respondent') when judgment was delivered online. Re-appraisal of the evidence to determine entitlement to costs is beyond review jurisdiction.

p. 9

Legal principles established

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  • An error apparent on the face of the record warranting review must be self-evident and not require elaborate arguments or a long-drawn process of reasoning to establish.
  • A party who contends that a court's decision was erroneous must pursue an appeal, not review; the slip rule cannot be used to make a court sit on appeal over its own judgment.

Court orders

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  1. 1.The Respondent/Applicant's Notice of Motion application dated 22nd May 2024 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (11)

  • Hiram v Muiruri & another
    (Environment & Land case 483 of 2017) [2023] KEELC 18485 (KLR) (Ruling)
  • Republic v Attorney General & 15 others Ex parte Kenya Seed Company Limited & 5 Others
    [2010] eKLR
  • Sanitam Services (E.A) Limited v Rentokil (K) Limited & another
    [2019] eKLR
  • National Bank of Kenya Ltd v Ndungu Njau
    [1997] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Outa v Okello & 3 others
    [2017] KESC 25 (KLR)
  • Muyodi v Industrial and Commercial Development Corporation & Anor
    [2006] 1 EA 243
  • Nyamogo and Nyamogo v Kogo
    [2001] EA 174
  • Omote & another v Ogutu
    (Civil Appeal E005 of 2021) [2022] KEHC 16441 (KLR) (Ruling)
  • Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya
  • Republic v Medical Practitioners & Dentists Board & Another; Kingángá (Ex parte)
    (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR) (Ruling)
Jurisdiction invoked
Sections 1A, 1B, 3A, 80, 99 & 100 of the Civil Procedure Act and Order 45 & Order 51 Rule 1 of the Civil Procedure Rules

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, "Ngeno v Mosonik (Environment and Land Appeal E001 of 2022) [2025] KEELC 1189 (KLR)", Case Analysis (2025). Kericho Environment and Land Case (appeal from Kericho CMCC) - not stated in full in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1189/eng@2025-03-13

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