Gichohi v Mulwa (Environment and Land Appeal 9 of 2016) [2025] KEELC 3063 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 was met
It was not met; the alleged new evidence (delay in typing of proceedings) had already been considered in the ruling of 27th July 2021 and was not new or sufficient
The court perused the ruling of 27th July 2021 and found that the issue of untyped proceedings and the appellant's failure to follow up on the lower court file had been expressly dealt with at paragraph 23 of that ruling. Grounds already canvassed and considered cannot constitute new and important matter or sufficient reason. Bringing the application over three years later, relying on the same grounds, amounted to an abuse of process contrary to the overriding objective.
Whether review could issue where the suit property has been sold to a third party not joined in the proceedings
No; reviewing or setting aside the order would issue orders prejudicial to a third party (the auction buyer) without according them a fair hearing
The memorandum of sale dated 8th December 2022 attached to the replying affidavit showed the suit house had been sold by public auction and legally changed hands. Since the buyer was not joined, reinstating the appeal and reviewing the striking-out order would affect third party rights without a fair hearing, reinforcing dismissal of the review prayers.
Who bears the costs of the application
The appellant, having failed in his application, to bear the respondent's costs
Costs follow the event under section 27 of the Civil Procedure Act. The respondent triumphantly defended the application, and applying the principle in Levben Products v Alexander Films that costs should ordinarily be awarded to the successful party, the court awarded the respondent costs.
Whether leave for new advocates to come on record should be granted
Yes; no prejudice would be suffered by granting prayer (b)
Even though prayers (d) and (e) failed, the court found no prejudice would flow from allowing Bunde Mangaro & Company Advocates to replace Muthee & Partners Advocates on record for the appellant, and so granted that limited prayer.
Legal principles established
#- Review is confined to the grounds in section 80 of the Civil Procedure Act and Order 45 Rule 1: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay
- Costs follow the event under section 27 of the Civil Procedure Act, and the successful party is ordinarily awarded costs
- Review or setting aside of orders striking out an appeal must be done on a case by case basis, and cannot issue where it would prejudice a third party not joined to the proceedings
Court orders
#- 1.Prayer (b) for Ms. Bunde Mangaro & Company Advocates to come on record for the appellant is allowed
- 2.The rest of the application is without merit and is hereby dismissed
- 3.The appellant to bear the respondent's costs
- On appeal from
- Chief Magistrate's Court
- CMCC 2402 of 2009
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules; section 3A, 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichohi v Mulwa (Environment and Land Appeal 9 of 2016) [2025] KEELC 3063 (KLR)", Case Analysis (2025). CMCC 2402 of 2009 (Appeal arising therefrom; Notice of Motion dated 30th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3063/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.