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ELCDismissedEnvironment and Land Court Case No. E333 of 2022 (application dated 21st June 2024)· [2025] KEELC 7229 (KLR)

Koinange & 2 others v Mitithiru Company Limited (Environment and Land Case E333 of 2022) [2025] KEELC 7229 (KLR)

Environment and Land Court
23 October 2025
3,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a review application, confirming that dissatisfaction with a ruling is a ground for appeal, not review.

What this practically means

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Executive summary

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The Defendant, by Notice of Motion dated 21st June 2024 under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, sought review of the ruling of 14th March 2024 which had dismissed the 3rd Plaintiff's Motion to strike out this suit. The Defendant contended the ruling contained an error apparent on the face of the record: having found the suit was filed without the consent of two of three co-administrators of the estate of Charles Karuga Koinange, the court nonetheless declined to strike it out and instead directed further interrogation of the disparity among the administrators. The Defendant also sought striking out of the 1st Plaintiff's amended plaint of 7th June 2024, alleging it was filed without leave and introduced fraud as a new cause of action. The 1st Plaintiff opposed, arguing misinterpretation of law is a matter for appeal, not review, and that leave to amend was unnecessary as pleadings had not closed. The court applied the settled test that an error apparent on the face of the record must be self-evident and not require elaborate argument (National Bank of Kenya v Ndungu Njau; Associated Insurance Brokers v Kenindia; Multichoice v Wananchi). It found no such error: the ruling reflected a deliberate assessment, and the Defendant's dissatisfaction lay in the realm of appeal. On the amended plaint, since no defence had been filed by 7th June 2024 (it was filed 27th June 2025), pleadings had not closed and no leave was required under Order 8 Rule 1; further, fraud had already been pleaded in the original plaint. The Motion was dismissed with costs on 23rd October 2025.

Key legal issues

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01

Whether an internal tension in a ruling between paragraph 26 (suit ought to be struck out) and paragraph 27 (interrogate the disparity among co-administrators) constitutes an error apparent on the face of the record

Holding

No; the ruling reflected a deliberate assessment and any dissatisfaction amounts to appeal grounds, not review

Reasoning

The court re-read its own ruling and found it had deliberately declined to strike out the suit because it needed to interrogate the disparity among the co-administrators, whether the suit property formed part of the estate, and whether there was a larger conspiracy. The findings were conscious and reasoned, not inadvertent or self-evidently contradictory, so the review threshold was not met.

p. 6
02

Whether the amended plaint filed without leave should be struck out

Holding

No; pleadings had not closed as no defence had been filed, so leave was not required, and fraud was already pleaded in the original plaint

Reasoning

Under Order 8 Rule 1 a party may amend without leave before pleadings close, and under Order 2 Rule 13 pleadings close on service of the defence. The defence was filed only on 27th June 2025, well after the 7th June 2024 amendment. Further, the original plaint already sought cancellation of the certificate of lease on grounds of fraudulently procured title, so fraud was not a new cause of action.

Legal principles established

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  • A review may only be granted where the error is self-evident and does not require elaborate argument; an erroneous decision is a matter for appeal, not review
  • Under Order 8 Rule 1 of the Civil Procedure Rules a party may amend pleadings without leave at any time before pleadings are closed, which closure requires a defence under Order 2 Rule 13

Court orders

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  1. 1.The Defendant's Notice of Motion dated 21st June 2024 seeking review of the order of 14th March 2024 and striking out of the amended plaint is dismissed with costs
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rules 1 and Order 2 Rule 1(d) of the Civil Procedure Rules, 2010

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, "Koinange & 2 others v Mitithiru Company Limited (Environment and Land Case E333 of 2022) [2025] KEELC 7229 (KLR)", Case Analysis (2025). Environment and Land Court Case No. E333 of 2022 (application dated 21st June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7229/eng@2025-10-23

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