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ELCDismissedNotice of Motion dated 31st July 2023· [2025] KEELC 6592 (KLR)

Muriithi v Gaciri (Civil Application E003 of 2023) [2025] KEELC 6592 (KLR)

Environment and Land Court
2 October 2025
JMJ. M. Mutungi
1,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's ELC ruled that unhappy litigants must appeal, not misuse supervisory jurisdiction, which only intervenes where there is real illegality or arbitrariness.

What this practically means

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Executive summary

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The Applicant, who was the Plaintiff in Kerugoya CMCC No. 170 of 2012 seeking eviction of the Respondent from land parcel Baragwe/Guama/1968, brought a Notice of Motion dated 31st July 2023 invoking the High Court's supervisory jurisdiction under Article 165(6) and (7) of the Constitution, seeking recall of the lower court file and the judgment of 6th April 2021. In that suit his case was dismissed for non-attendance on a date his own advocate had fixed, the Respondent's counterclaim (founded on a registered 30-year lease from 14th February 2002) proceeded exparte and judgment was entered for the Respondent; the Applicant's application to set aside that judgment was refused on 18th August 2022 and no appeal was lodged. The Respondent filed a Notice of Preliminary Objection contending the application offended Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2. The court held that supervisory jurisdiction is not an unfettered licence to call for subordinate court files; where proceedings were regular, the proper channel is appeal or, in the civil context, judicial review, and there was no demonstrable illegality or wanton arbitrariness. The Fair Administrative Action Act route was also inapplicable to a court exercising judicial function. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Scope of supervisory jurisdiction under Article 165(6) and (7)

Holding

The jurisdiction is not a substitute for appeal; where proceedings before a subordinate court are regular, the superior court should not interfere absent demonstrable illegality or wanton arbitrariness

Reasoning

The court held the Chief Magistrate was exercising a judicial function in rendering an exparte judgment after the Applicant's advocate, who fixed the hearing date, failed to attend. The remedy against refusal to set aside was appeal, which the Applicant did not pursue. Supervisory review cannot cure mere dissatisfaction with a judicial outcome.

p. 3
02

Availability of the Fair Administrative Action Act route

Holding

The Fair Administrative Action Act does not apply to judicial decisions of courts of law

Reasoning

The court reasoned that the Act targets quasi-judicial bodies exercising adjudicative functions, to check procedural fairness of administrative-type decisions, whereas the Chief Magistrate's judgment was an exercise of a judicial function by a court, outside that oversight framework.

p. 2

Legal principles established

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  • Supervisory jurisdiction under Article 165(6) and (7) does not confer an unfettered right to call for subordinate court files where proceedings were regular; the appellate process is the appropriate avenue

Court orders

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  1. 1.The application dated 31st July 2023 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(6) and (7)
  • Constitution of Kenya, 2010Article 47
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 80
  • Civil Procedure RulesOrder 45 Rule 1 & 2
  • Fair Administrative Action ActSection 4
Jurisdiction invoked
Article 165(6) and (7) of the Constitution (supervisory jurisdiction of the High Court)

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, "Muriithi v Gaciri (Civil Application E003 of 2023) [2025] KEELC 6592 (KLR)", Case Analysis (2025). Notice of Motion dated 31st July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6592/eng@2025-10-02

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