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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 1289 (KLR)

Wainaina v Njii & another (Sued as the Administrator of the Estate of the Late Muigai Mwaura) (Environment & Land Case E233 of 2023) [2025] KEELC 1289 (KLR)

Environment and Land Court
18 March 2025
1,664 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ruled that an unanswered application isn't a judicial error—you simply ask the court for a new ruling date.

What this practically means

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Executive summary

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The court, per Christine Ochieng J, delivered a ruling at Nairobi on 18th March 2025 dismissing the 2nd Defendant's Notice of Motion dated 2nd May 2024 brought under Sections 1A, 1B and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The applicant sought review, variation or setting aside of a ruling delivered on 30th April 2024 by Justice Wabwoto, contending that the court had inadvertently failed to pronounce itself on the 2nd Defendant's application dated 26th October 2023, which sought that rental income from LR No. 209/11388/40 be deposited into a joint interest-earning account in the names of the Defendants' advocates. Alternatively, the applicant asked the court to issue a ruling on that application. The Plaintiff opposed, arguing that failure to render a ruling is not an error apparent on the face of the record and that the grounds raised were grounds of appeal, not review. The 1st Defendant, the registered proprietor, also opposed, maintaining his right to collect rent. Applying Section 80 and Order 45 Rule 1, and associating itself with the Court of Appeal decision in National Bank of Kenya Ltd v Ndungu Njau, the court held that since no decision had been made on the 26th October 2023 application, there was no error apparent on the face of the record; the proper course was to request a ruling date. The court also declined the alternative prayer, holding that a review application cannot carry an alternative prayer, but in the interest of justice directed a fresh ruling date for that application. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the ruling of 30th April 2024 should be reviewed on the ground of mistake or error apparent on the face of the record

Holding

The application for review fails because the court never determined the 2nd Defendant's application dated 26th October 2023; there was therefore no decision and no error apparent on the face of the record

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1 permit review on account of mistake or error apparent on the face of the record. The court found that although it had directed on 6th February 2024 to rule on two pending applications, the ruling of 30th April 2024 only dealt with the Plaintiff's application of 23rd June 2023. The absence of a decision on the 2nd Defendant's application is an omission, not an error on the face of the record; the correct course was to request a fresh ruling date.

p. 4
02

Whether a review application may carry an alternative prayer for a ruling on the undetermined application

Holding

No - a review application cannot have an alternative prayer, and the court declined to make a finding on it, instead scheduling a fresh ruling date

Reasoning

The court held that the statutory review framework under Section 80 and Order 45 does not accommodate alternative prayers within a review application. However, in the interest of justice, the court exercised its discretion to fix a fresh date for delivery of the ruling on the 2nd Defendant's application dated 26th October 2023 rather than leave the omission unaddressed.

p. 4

Legal principles established

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  • A review may be granted only where there is a self-evident error or omission on the part of the court requiring no elaborate argument
  • Failure by a court to render a decision on a pending application is not an error apparent on the face of the record; the remedy is to seek a ruling date

Court orders

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  1. 1.Dismissal of the 2nd Defendant's Notice of Motion application dated 2nd May 2024
  2. 2.The court to issue a fresh date for the Ruling on the 2nd Defendant's application dated 26th October 2023
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (5)

  • Nation Media Group & Another v Awale Transporters Limited
    [2022] eKLR
  • Zablon Mokua v Solomon M. Chotu & 3 Others
    [2016] eKLR
  • Nasibwa Wakenya Moses v University of Nairobi & Another
    [2019] eKLR
  • Gichuru v Inspector General of Police & 5 Others
    [2023] eKLR
  • National Bank of Kenya Ltd v. Ndungu Njau
    (Civil Appeal No. 211 of 1996)
Jurisdiction invoked
Sections 1A, 1B and 80 of the Civil Procedure Act and Order 45 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, "Wainaina v Njii & another (Sued as the Administrator of the Estate of the Late Muigai Mwaura) (Environment & Land Case E233 of 2023) [2025] KEELC 1289 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1289/eng@2025-03-18

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