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ELCDismissedNot stated in the judgment· [2025] KEELC 4300 (KLR)

Gobe v Bora (Environment and Land Appeal E005 of 2023) [2025] KEELC 4300 (KLR)

Environment and Land Court
4 June 2025
2,945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to review its own judgment, confirming that forgotten court submissions don't invalidate a ruling and disputes over errors belong on appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Isiolo (Oguttu Mboya J, 4 June 2025) determines the Applicant's notice of motion dated 16 April 2025 seeking review, amendment or setting aside of the court's own judgment of 7 April 2025 in a land appeal, and admission of written submissions dated 9 October 2024 which the Applicant contended were erroneously omitted or misplaced from the court record. The Respondent (the appellant in the substantive appeal) opposed, contending that the threshold for review was not met and that the Applicant had not proven that the submissions were ever filed on the judiciary e-platform, no CTS extract or filing receipt having been availed. The court framed two issues: whether the threshold for review was satisfied, and whether failure to consider submissions invalidates a judgment. Applying Order 45(1) of the Civil Procedure Rules, the court held that review lies only for an error or mistake of law apparent on the face of the record, discernible at a glance; that the burden lies on the applicant on a balance of probability; and that the judgment embodied deliberate, well-reasoned findings whose correction, if erroneous, lies on appeal, not review. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court further held that submissions are not evidence and that failure to consider duly filed submissions does not vitiate a judgment, the first appellate court having independently re-evaluated the entire record under section 78 of the Civil Procedure Act. The application was dismissed with costs to the Respondent, to be agreed or taxed.

Key legal issues

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01

Whether the applicant satisfied the statutory threshold for review under order 45(1) of the Civil Procedure Rules 2010

Holding

The applicant failed to meet the threshold. The only ground invoked was non-consideration of written submissions; no error or mistake apparent on the face of the record was demonstrated, and the applicant did not prove the submissions were duly filed on the e-platform.

Reasoning

An applicant for review must plead the specific ground and place credible evidence before the court, discharging the burden on a balance of probability. Review lies only for an error apparent on the face of the record, being an error of law discernible at a glance. The judgment contained deliberate, well-reasoned findings; any error would be an erroneous view curable only by appeal. No new and important evidence was involved since submissions are not evidence.

p. 5
02

Whether a failure to take into account written submissions invalidates a judgment

Holding

No. Failure to consider duly filed submissions does not vitiate a judgment; cases are decided on evidence and the law, and submissions are not evidence.

Reasoning

The court, as a first appellate court, was duty-bound under section 78 of the Civil Procedure Act to re-evaluate the entire record and draw its own conclusions of fact and law, which it did. Citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, submissions are merely 'marketing language' and cannot substitute for evidence; many cases are decided without hearing submissions. Hence non-consideration of the applicant's submissions, whose filing was itself unproven, could not invalidate the judgment.

p. 5

Legal principles established

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  • Review lies only for an error or mistake apparent on the face of the record, being an error of law discernible at a glance without elaborate argument.
  • A failure to take into account duly filed written submissions does not invalidate or vitiate a judgment; cases are determined on evidence and the law, and submissions do not constitute evidence.
  • An erroneous view of the issues, as distinct from an error apparent on the face of the record, can only be remedied on appeal and not by review.
  • The burden of demonstrating a basis for review lies on the applicant and must be discharged on a balance of probability; omnibus accusations are insufficient.

Court orders

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  1. 1.The Application dated 16th April 2025 be and is hereby dismissed.
  2. 2.Cost of the Application be and are hereby awarded to the Respondent [appellant in the main suit]
  3. 3.The Cost in terms of clause[ ii] shall be agreed upon and in default same to be taxed in the conventional way.
Jurisdiction invoked
Inherent and review jurisdiction under order 45 (1) of the Civil Procedure Rules 2010; appellate powers under section 78 of the Civil Procedure Act Chapter 21 Laws of Kenya

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, "Gobe v Bora (Environment and Land Appeal E005 of 2023) [2025] KEELC 4300 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4300/eng@2025-06-04

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