Ademba v Odhiambo (Environment and Land Appeal E015 of 2024) [2025] KEELC 8015 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that magistrates can only fix clear errors when reviewing their own judgments—they cannot reopen the merits and reverse themselves.
What this practically means
#Executive summary
#Key legal issues
#Competence of a cross-appeal instituted by 'Notice of Cross-Appeal' and directed at a judgment other than the ruling under appeal
The Notice of Cross-Appeal was incompetent both in form (proper procedure is a Memorandum of Appeal) and in substance, being an appeal against the trial judgment rather than the impugned ruling, and was dismissed
The court noted no specific provision governs the mode of filing a cross-appeal but held the proper procedure is a Memorandum of Appeal. Though the court, invoking Article 159(2)(d) and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, considered the merits, the grounds attacked the judgment of 11th September 2023 whereas the admitted appeal targeted only the ruling of 20th August 2024, so the cross-appeal failed.
Scope of review jurisdiction under Order 45
The trial magistrate was entitled to correct the omission of costs as an error on the face of the record, but exceeded review jurisdiction by re-evaluating evidence, reversing his own findings on the merits and ordering Marachi/Bujumba/1266 to revert to Joseph Otieno
Relying on National Bank of Kenya v Ndungu Njau and Fredrick Otieno Outa v Jared Odoyo Okello, the court held review cannot be used to rehear a case or alter substantive rights. The magistrate 'sat on an appeal against his own judgment', usurping appellate jurisdiction. The judgment dismissed the suit without costs; that omission alone was reviewable, so the ruling was set aside to the extent it affected parcel 1266.
Duty of a first appellate court
The court applied the Okeno v R principle that a first appellate court must re-examine the evidence and draw its own conclusions, while distinguishing counsel's reliance on the Indian case Ganpat v State of Haryana
Counsel for the Respondent relied on Ganpat to argue the appellate court could re-evaluate the evidence, but the court held that authority concerned appellate review of a trial decision, materially different from a magistrate exercising review jurisdiction over his own judgment, which is what produced the impugned ruling.
Legal principles established
#- A review under Order 45 may only correct an apparent error or omission on the face of the record; a court exercising review jurisdiction cannot rehear the case, reconsider the evidence afresh or re-write its judgment in the manner of an appellate court
- Costs follow the event unless the court, for reasons to be provided, orders otherwise; omission of costs in a judgment is an error apparent on the face of the record correctable under Sections 99 and 100 of the Civil Procedure Act
Court orders
#- 1.The Notice of cross-appeal is dismissed with no order as to costs
- 2.The appeal is allowed and the ruling and order of 20th August 2024 to the extent that it affects the land parcel No Marachi/Bujumba/1266 is set aside and the judgment dismissing the Respondent suit is restored
- 3.The Appellant shall have costs of the appeal and of the suit before the trial Court
- On appeal from
- Busia Chief Magistrate's Court
- ELC Case No E067
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court (appeal from ruling in review proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ademba v Odhiambo (Environment and Land Appeal E015 of 2024) [2025] KEELC 8015 (KLR)", Case Analysis (2025). Appeal against ruling of 20th August 2024 in Busia Chief Magistrate's Court ELC Case No E067. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8015/eng@2025-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.