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ELCDismissedNot stated in judgment (notice of motion dated 25th November 2024)· [2025] KEELC 3989 (KLR)

Guandai (Suing as the Administrator of the Estate of Guandai Karugu) v Tuei & 4 others (Environment & Land Case 65 of 2019) [2025] KEELC 3989 (KLR)

Environment and Land Court of Kenya at Kajiado
22 May 2025
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a judge who replaced a transferred colleague can review that colleague's ruling, then dismissed the review application with costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado on a notice of motion dated 25th November 2024 in which the Plaintiff sought review, setting aside or variation of a ruling delivered by Gicheru J on 6th November 2024. That earlier ruling allowed the 5th Defendant to amend his defence and counter-claim, inhibited dealings with L.R. No. Kjd/Olekasasi/2175-83 (subdivisions of L.R. No. Kjd/Olekasasi/12), and joined the Land Registrar – Ngong as an interested party. The Plaintiff contended that the ruling contained an error apparent on the face of the record because it recorded that he had not filed a response, whereas he had filed a replying affidavit on 1st February 2024 and submissions on 9th September 2024. The Defendants opposed, arguing the ruling was made on merit and the application was an abuse of process aimed at delaying the suit. M.D. Mwangi J framed two issues: jurisdiction and merit. On jurisdiction, the court applied Njuka v Gituma, holding that review under Section 80 of the Civil Procedure Act lies with the court station, not the judicial officer, so the successor judge could review the transferred judge's ruling. On merit, the court held that failure to consider a replying affidavit is a ground of appeal, not an error apparent on the face of the record, and that in any event the replying affidavit had been filed out of time and without leave, rendering it a nullity. The application was dismissed with costs to the Respondents, and the court directed a case management conference, deploring the proliferation of interlocutory applications.

Key legal issues

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01

Whether the court has jurisdiction to review a ruling delivered by a predecessor who has been transferred

Holding

The court, not the judicial officer, is seized of the matter; the successor judge has jurisdiction to review

Reasoning

Section 80 of the Civil Procedure Act permits review by 'the court which passed the decree or made the order'. Relying on Musyoka J in Njuka v Gituma, the court held that the 'court' means the court station seized of the matter, not the judicial officer. Gicheru J was transferred but the court at Kajiado remains, so the successor judge properly exercises the review jurisdiction.

p. 3
02

Whether failure to consider a replying affidavit and submissions constitutes an error apparent on the face of the record

Holding

No; such failure is a ground of appeal, not of review

Reasoning

Under Order 45 rule 1, review lies on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. Following National Bank of Kenya v Ndungu Njau, an apparent error must be self-evident. An allegation that the court failed to consider filings requires elaborate argument and is properly a matter for appeal. Additionally, the replying affidavit was itself filed out of time and without leave, so it was of no effect.

p. 4

Legal principles established

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  • For purposes of Section 80 of the Civil Procedure Act, review jurisdiction lies with the court station, not the judicial officer; a successor judge may review a ruling made by a predecessor who has been transferred
  • Failure by a court to consider a filing is a ground of appeal, not an error apparent on the face of the record for review
  • A replying affidavit filed out of time and without leave of court is of no effect

Court orders

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  1. 1.The notice of motion dated 25th November 2024 is dismissed with costs to the Respondents
  2. 2.The court will set down this case for case management conference forthwith with a view to fixing a hearing date and hearing the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1

Cases cited (3)

  • Njuka v Gituma
    [2023] KEHC 3180 [KLR]
  • Benjoh Amalgamated Limited and another v Kenya Commercial Bank Limited
    [2014] eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
Jurisdiction invoked
Section 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, "Guandai (Suing as the Administrator of the Estate of Guandai Karugu) v Tuei & 4 others (Environment & Land Case 65 of 2019) [2025] KEELC 3989 (KLR)", Case Analysis (2025). Not stated in judgment (notice of motion dated 25th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3989/eng@2025-05-22

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