Athman & 4 others (Suing on behalf of all the 402 Residents of Utange Section I Mainland North) v Said (Sued as a beneficiary of the Late Said Saleh Sherman alias Said Swaleh Nguru); Muye & 14 others (Interested Parties) (Environment and Land Case 58 of 2015) [2025] KEELC 5304 (KLR)
The bottom line
#A Mombasa land court threw out the plaintiffs' attempt to revive their dismissed suit, confirming that vague, catch-all applications will fail and costs will follow.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under section 80 CPA and Order 45 was met
The prayer for review failed because no particulars of the alleged error apparent were given
The court applied Order 45 and authority requiring an error apparent to be obvious and patent, self-evident without lengthy argument. The plaintiffs were general in raising error apparent on the face of the record, specifying no particulars, so review was impermissible.
Whether the ruling of 10th May 2023 should be set aside or varied
Failed; no injustice, hardship, inadvertence or excusable mistake demonstrated per Shah v Mbogo
The discretion to set aside is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a person who has deliberately obstructed justice. The supporting affidavit did not demonstrate any such ground.
Whether the suit should be reinstated and proposed defendants joined
Failed; no compelling case for reinstatement and no demonstrated interest by proposed defendants
The plaintiffs made no compelling case for exercise of the reinstatement discretion and failed to show the legal or equitable interests of the proposed defendants making them necessary parties; the proposed defendants themselves opposed joinder.
Whether omnibus prayers are proper
The court endorsed the Supreme Court's warning against omnibus applications with ambiguous prayers
Relying on Aviation & Allied Workers Union Kenya v Kenya Airways, the court held that a litigant must cite specific provisions of law clothing the court with jurisdiction; omnibus applications with ambiguous prayers hoping the court will grant at least some are improper.
Legal principles established
#- A party who moves the court must cite the specific provision of law conferring jurisdiction and must not make omnibus applications with ambiguous prayers.
- An error apparent on the face of the record must be obvious and patent, not one established by a long-drawn process of reasoning.
- Costs follow the event unless there is good reason to order otherwise.
Court orders
#- 1.The application dated 17th October 2023 is dismissed in its entirety
- 2.The plaintiffs to bear the costs of the application for the defendant and the interested parties/proposed defendants
- Jurisdiction invoked
- Sections 80 and 27 of the Civil Procedure Act (Chapter 21, Laws of Kenya) and Orders 22, 37, 40 and 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athman & 4 others (Suing on behalf of all the 402 Residents of Utange Section I Mainland North) v Said (Sued as a beneficiary of the Late Said Saleh Sherman alias Said Swaleh Nguru); Muye & 14 others (Interested Parties) (Environment and Land Case 58 of 2015) [2025] KEELC 5304 (KLR)", Case Analysis (2025). ELC Mombasa (originating summons dated 2nd April 2015); notice of motion dated 17th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5304/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.