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ELCDismissedNot stated in judgment

Mosonk v Changwony (Environment and Land Case 25 of 2015) [2025] KEELC 5428 (KLR)

Environment and Land Court
17 July 2025
2,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (Ombwayo J) on the Defendants'/Applicants' notice of motion dated 4th April 2025 seeking review of the court's ruling of 28th March 2025. That ruling had directed the parties to maintain the status quo pending the hearing and determination of an appeal, on condition that the Defendants deposit Kshs. 200,000/= in a joint advocates' account as security for costs. The Applicants argued that this order was an error apparent on the face of the record because the court's judgment of 30th January 2025 had directed each party to bear its own costs and therefore awarded no costs to secure. The Plaintiff/Respondent opposed, contending that the security order was a discretionary protection against unrecoverable costs should the appeal fail and that no exceptional grounds for review had been demonstrated. The court framed one issue: whether the application for review was merited. Relying on Order 45 Rule 1(1) of the Civil Procedure Rules and Section 99 of the Civil Procedure Act, and applying Muyodi v ICDC, Omote v Ogutu and the Medical Practitioners & Dentists Board case, the court held that the order for security for costs was an exercise of discretion in granting stay of execution pending appeal, not an error apparent on the face of the record; the alleged error required reasoning to establish and thus fell outside the narrow scope of review. The application was dismissed with costs to the Applicants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Defendants'/Applicants' application for review of the ruling of 28th March 2025 is merited
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the court's order for deposit of security for costs of Kshs. 200,000/= in the stay ruling was an error apparent on the face of the record warranting review under Order 45 Rule 1(1)

Holding

The application for review was not merited; the security for costs order was a discretionary condition for stay of execution, not an error apparent on the face of the record, and questioning it required a process of reasoning beyond the scope of review

Reasoning

The court reiterated that an error apparent on the face of the record must be self-evident and not require a long drawn process of reasoning. It held that ordering security for costs as a condition of stay of execution was a discretionary decision, and a party who disagrees with the discretion exercised must pursue an appeal, not review. Disagreement with a possible view is not an error apparent on the face of the record.

p. 5

Legal principles established

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  • An order for security for costs made as a condition for stay of execution pending appeal is an exercise of the court's discretion and is not an error apparent on the face of the record merely because the underlying judgment awarded no costs

Court orders

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  1. 1.The application for review of the ruling of 28th March 2025 is dismissed
  2. 2.Costs of the application to be borne by the Applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Order 45 Rule 1(1) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act

Relief refused

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Review of the ruling of 28th March 2025 so as to vary and do away with the order for deposit of security for costs of Kshs. 200,000/=

The order for security for costs was an exercise of the court's discretion in granting stay of execution pending appeal and did not amount to an error apparent on the face of the record

p. 5

Costs of the application to abide the outcome of the intended appeal

The court instead ordered the Applicants to bear the costs of the application

p. 5

Costs

Costs of the application to be borne by the Defendants/Applicants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out.
p. 4Test for error apparent on the face of the record (Muyodi v ICDC)
The fact that a party believes that the Court should have reached a difierent conclusion or that the decision was erroneous are matters fit for appeal rather than review which is limited in scope.
p. 4Review vs appeal (Omote v Ogutu)
by the court having directed payment of security for costs does not amount to an error or mistake on the face of record. This is because the same was the court's exercise of its discretion in the conditions to be met in granting stay of execution pending appeal.
p. 5Security for costs as discretionary stay condition
In view of the above, I find that the orders for review is not merited. Cost of the application to be borne by the Applicants. It is so ordered.
p. 5Final orders/disposition

Issues in the judgment

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material

The judgment does not state the case number, the name of the Plaintiff/Respondent, or a neutral citation

minor

The judgment inconsistently refers to the Applicants as 'the Appellant' in the analysis although this is a review application, not an appeal

minor

Paragraph numbering is irregular; paragraph 15 appears mislabelled, with numbering jumping into paragraph 21 and 22 within a quotation block

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, "Mosonk v Changwony (Environment and Land Case 25 of 2015) [2025] KEELC 5428 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5428/eng@2025-07-17

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