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ELCDismissedButali Magistrates Court ELC Appeal re ruling of 14th November 2023 (arising from Butali PM ELC Case No. 1 of 2021)· [2025] KEELC 5129 (KLR)

Muliango & 2 others v Andai (Environment and Land Appeal E039 of 2023) [2025] KEELC 5129 (KLR)

Environment and Land Court of Kenya (first appellate court over subordinate ELC matters)
30 June 2025
5,209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed courts can set aside their own ex parte orders when a party was not heard, despite the ban on second reviews.

What this practically means

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Executive summary

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The appellants, defendants in a long-running land dispute over Parcel No. Kakamega/Lumakanda/5876 instituted by Shadrack M. Andai in 2016, appealed against a ruling of Hon. R. S. Kipngéno, Principal Magistrate, delivered on 14th November 2023 in Butali PM ELC Case No. 1 of 2021. The trial magistrate had allowed the respondent's application dated 27th September 2023, setting aside the ex parte ruling of 23rd May 2023 (which had allowed the appellants' review application dated 20th April 2023 against orders of 13th October 2022 permitting production of the title deed and green card as exhibits), and dismissing the appellants' review application. The appellants argued, relying on Order 45 Rule 6 of the Civil Procedure Rules, that the trial court lacked jurisdiction to entertain a second review and had sat on appeal over its own decision; they also contested production of the documents without the Land Registrar and sought re-allocation of the suit to another magistrate. A. Nyukuri J held that although Order 45 Rule 6 bars a second application for review, the trial court had jurisdiction, under sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 15 and Article 50 of the Constitution, to set aside its own ex parte order where a party had been condemned unheard. The court further held that the appellants' review application was a disguised appeal filed after six months' inordinate delay, pleading none of the Order 45 Rule 1 grounds. The appeal was dismissed with costs to the respondent, and the trial court was directed to determine the suit, pending since 2016, within six months.

Key legal issues

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01

Jurisdiction to entertain an application to set aside/review a ruling made on a review application

Holding

Although Order 45 Rule 6 bars a second review, the trial court had jurisdiction under its inherent powers (s.3A Civil Procedure Act) and Order 51 Rule 15 to set aside its own ex parte order where a party was denied a fair hearing.

Reasoning

The respondent's reply and submissions were on file but not considered when the ruling of 23.5.2023 was delivered ex parte. The court held that the right to be heard, codified in Article 50, cannot be defeated by Order 45 Rule 6, and that inherent powers exist to correct an apparent injustice by setting aside ex parte orders.

p. 8
02

Merits of the application dated 27th September 2023

Holding

The ex parte ruling of 23rd May 2023 was properly set aside because it violated the respondent's right to a fair hearing.

Reasoning

Having found that the ruling of 23rd May 2023 was delivered without considering the respondent's replying affidavit and submissions, the court held that the denial of an opportunity to be heard was a good reason for setting the orders aside, and the subsequent dismissal of the 20.4.2023 review application was also proper.

p. 9
03

Whether the appellants' application dated 20th April 2023 met the threshold for review

Holding

It did not: it was filed after inordinate delay (six months), pleaded none of the Order 45 Rule 1 grounds, and was a disguised appeal against the ruling of 13th October 2022.

Reasoning

The application was based on the appellant's mere displeasure with the court's ruling on an objection to production of the title deed. None of the grounds of review (new matter, error apparent on the face of the record, sufficient reason) was pleaded, and the proper remedy was an appeal.

p. 10

Legal principles established

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  • A court is barred from entertaining a second application for review of an order made on an application for review.
  • A court has inherent power, notwithstanding the bar on second reviews, to set aside an ex parte order where a party was condemned unheard, so as to vindicate the right to a fair hearing.
  • Review is not a disguised appeal; a party aggrieved by an interlocutory decision must appeal rather than seek review.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.The matter to be determined before the trial court within six (6) months of the judgment
On appeal from
Butali Principal Magistrate's Court (ELC Case No. 1 of 2021)
ELC Case No. 1 of 2021
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Principal Magistrate's Court in an Environment and Land matter

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, "Muliango & 2 others v Andai (Environment and Land Appeal E039 of 2023) [2025] KEELC 5129 (KLR)", Case Analysis (2025). Butali Magistrates Court ELC Appeal re ruling of 14th November 2023 (arising from Butali PM ELC Case No. 1 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5129/eng@2025-06-30

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