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ELCDismissedELC No. 32 of 2021 (formerly ELC No. 291 of 2013, Kisumu)· [2025] KEELC 4183 (KLR)

Mbindah & another v Mwende & 10 others (Environment & Land Case 32 of 2021) [2025] KEELC 4183 (KLR)

Environment and Land Court
30 May 2025
3,198 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed landowners' bid to revive their trespass case, confirming that only a real appeal—not a review—can challenge a judgment's reasoning.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (A.E. Dena J) determines a Notice of Motion dated 26 November 2024 by which the plaintiffs sought review and/or setting aside of the judgment of 26 September 2024 dismissing their trespass suit over North Ugenya parcels 587, 589 and 591. The application, brought under sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, was premised on counsel's inadvertent failure to sign and date an amended plaint (a signed copy later placed in the file) and on the judgment's alleged misdescription of the Land Registrar's report date (12 May 2012 instead of 18 May 2012). The respondents opposed, contending that review and appeal cannot be pursued simultaneously since the applicants had filed a Notice of Appeal in the Court of Appeal. The court first resolved the jurisdictional question, applying the Court of Appeal's decision in Multi Choice (Kenya) Ltd v Wananchi Group, holding that a notice of appeal is not itself an appeal, and that jurisdiction to review exists where only a notice of appeal has been lodged and no substantive appeal instituted. On the merits, however, the court declined review: the unsigned pleading issue had been fully analysed and decided in the judgment, so re-litigating it would amount to the court sitting on appeal over its own decision; 'sufficient reason' must be analogous to the statutory grounds; and the alleged error on the Registrar's report date was a matter for the appellate forum. The application was dismissed with costs to the participating respondents.

Key legal issues

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01

Jurisdiction to review where a Notice of Appeal has been filed

Holding

The court has jurisdiction because a Notice of Appeal is not a substantive appeal; it merely evinces intention to appeal, and no Record of Appeal was filed

Reasoning

Relying on the Court of Appeal decision in Multi Choice (Kenya) Ltd v Wananchi Group, the court held that review and appeal are not simultaneously available only once a substantive appeal has been instituted under Rule 82. Since the applicant had only lodged a Notice of Appeal and had taken no further steps to file a Record of Appeal, the court was clothed with jurisdiction to hear the review application.

p. 5
02

Whether counsel's mistake in failing to sign and date the amended plaint constitutes sufficient reason for review

Holding

No - the issue was fully analysed and decided in the judgment, so challenging it is a point of appeal, not review; 'sufficient reason' must be analogous to the other review grounds

Reasoning

The judgment had already dealt with the unsigned pleading as a stand-alone issue, citing law and precedent. The applicant was in effect asking the court to rehear its own decision because PW1 adopted the signed copy. The court held that a review is not an appeal in disguise and that the alleged error, including the misdescription of the Land Registrar's report date, was a matter for the appellate forum.

p. 6

Legal principles established

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  • A notice of appeal is not an appeal but a means of evincing intention to appeal; the court retains jurisdiction to entertain an application for review where only a notice of appeal has been lodged
  • Review proceedings are not an appeal; the court cannot rehear an allegedly erroneous decision or re-appraise evidence under the guise of review

Court orders

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  1. 1.The Notice of Motion application dated 26/11/2024 is dismissed with costs to the respondents who participated in the application
Jurisdiction invoked
Sections 1A, 1B, 3, 3A 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, "Mbindah & another v Mwende & 10 others (Environment & Land Case 32 of 2021) [2025] KEELC 4183 (KLR)", Case Analysis (2025). ELC No. 32 of 2021 (formerly ELC No. 291 of 2013, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4183/eng@2025-05-30

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