Mbindah & another v Mwende & 10 others (Environment & Land Case 32 of 2021) [2025] KEELC 4183 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to review where a Notice of Appeal has been filed
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
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.
Whether counsel's mistake in failing to sign and date the amended plaint constitutes sufficient reason for review
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
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.