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ELCDismissedELC Appeal from Kimilili PM Courts ELC Case Number 21 of 2019· [2025] KEELC 7680 (KLR)

Maina v Malaba (Suing as the legal and personal representative of the Late Edward Tale Nabangi) (Civil Appeal E001 of 2024) [2025] KEELC 7680 (KLR)

Environment and Land Court
6 November 2025
1,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a landowner's appeal because she used review and appeal wrongly to reopen an already-decided land case.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Bungoma against the ruling of Hon. W.K. Onkunya, Principal Magistrate, dismissing Jane Maina's application dated 09/12/2024 seeking review, variation, setting aside and vacating of the judgment delivered on 03/07/2024 in Kimilili PM ELC Case No. 21 of 2019, in which Catherine Nekesa Malaba, as legal and personal representative of the late Edward Tale Nabangi, had obtained injunction and eviction orders against the Appellant. The Appellant raised seven grounds, including denial of a hearing, want of jurisdiction to determine boundary questions under sections 18 and 19 of the Land Registration Act, abatement of the suit following the original plaintiff's death, and errors about ownership and existence of the suit parcels. The court found that the grounds of appeal did not relate to the impugned ruling but attacked the trial judgment, amounting to an improper attempt to re-litigate determined matters and an abuse of the appellate process. The only arguable ground - denial of hearing - failed on the record, as the Appellant was granted leave to file a further affidavit and submissions before the ruling was delivered. The court held that the Appellant did not satisfy the review threshold under Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, and that review cannot substitute an appeal. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the grounds of appeal were directed at the impugned ruling

Holding

The grounds were directed at the trial judgment rather than the ruling dismissing the review application, rendering the appeal procedurally improper

Reasoning

The court scrutinised the memorandum of appeal and found the seven grounds attacked the findings of the trial court in its judgment of 03/07/2024, not the ruling on the review application. This amounted to an attempt to reopen determined matters, an abuse of the appellate process.

p. 4
02

Whether the Appellant was denied the right to be heard on her review application

Holding

The Appellant was afforded adequate opportunity; the claim of denial of hearing failed

Reasoning

The record showed the court directed service of the application, the Respondent filed a replying affidavit and submissions, and the Appellant was granted 14 days to file a further affidavit and submissions before the ruling. The right to be heard was thus honoured.

p. 4
03

Whether the trial court erred in dismissing the review application

Holding

The Appellant did not meet the threshold for review under Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act

Reasoning

Review requires discovery of new and important matter, an error apparent on the face of the record, or sufficient reason. The Appellant merely sought to re-litigate her defence before the trial court, which is a misuse of review proceedings that cannot substitute an appeal.

p. 4

Legal principles established

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  • Grounds of appeal must relate to the ruling appealed against; a party may not re-litigate matters already determined at trial under the guise of an appeal
  • Review requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, and cannot substitute an appeal

Court orders

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  1. 1.The appeal was dismissed with costs to the Respondent
On appeal from
Kimilili Principal Magistrate's Court (ELC)
ELC Case Number 21 of 2019
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the trial magistrate

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, "Maina v Malaba (Suing as the legal and personal representative of the Late Edward Tale Nabangi) (Civil Appeal E001 of 2024) [2025] KEELC 7680 (KLR)", Case Analysis (2025). ELC Appeal from Kimilili PM Courts ELC Case Number 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7680/eng@2025-11-06

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