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ELCDismissedThika MCL Case No. E131 of 2021 (appeal therein)· [2025] KEELC 8021 (KLR)

Bing v Kibe (Environment and Land Appeal E002 of 2025) [2025] KEELC 8021 (KLR)

High Court of Kenya
19 November 2025
JOJ. M Onyango
3,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that a late, unexplained review application fails on delay alone, even if the underlying argument has merit.

What this practically means

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Executive summary

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This is a first appeal from the ruling of Hon. S. Atambo, Chief Magistrate, delivered on 13th December 2024 in Thika MCL Case No. E131 of 2021, dismissing the Appellant's application dated 16th May 2024 seeking review of the ruling of 9th April 2024 and a determination of its Preliminary Objection dated 12th October 2023 on pecuniary jurisdiction. The objection contended the subject property was worth Kshs 50,000,000, beyond the magistrates' court's pecuniary jurisdiction; the Respondent maintained the suit property, LR 4953/2774, was valued at Kshs 12,000,000 at filing and was distinct from Thika Municipality Block 29/720 pleaded in the counterclaim. The Appellant argued the trial court failed to consider the P.O. dated 12th October 2023, constituting an error apparent on the face of the record under Order 45, and a breach of the right to be heard. The Respondent countered that the jurisdictional issue had in fact been determined by both Hon. Asiyo and Hon. Atambo, that the review was filed after unexplained delay of over a month, and that it was defective for failure to annex the order sought to be reviewed; the objection itself was not a pure point of law. J. M. Onyango J identified a single issue: whether the trial court erred in dismissing the review application. The court held that the substance of the jurisdictional argument had been addressed in the ruling of 9th April 2024, that a failure to consider a document whose substance was addressed is not an error apparent on the face of the record, and that the unexplained delay alone sufficed to defeat the review. The appeal was dismissed with costs.

Key legal issues

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01

Whether the inability of the trial court to trace the Preliminary Objection dated 12th October 2023 amounted to an error apparent on the face of the record warranting review

Holding

No - the substance of the jurisdictional issue raised in the objection had been addressed in the ruling of 9th April 2024, so no error apparent on the face of the record existed

Reasoning

The court held review is a restricted remedy available only on discovery of new evidence, error apparent on the face of the record, or other sufficient reason, and must be made without unreasonable delay. The ruling of 9th April 2024 addressed the pecuniary jurisdiction objection substantively, finding the two parcels distinct and the suit property valued within the court's jurisdiction. A review court cannot sit on appeal over its own decision.

p. 6
02

Whether the delay of over one month in filing the review application defeated it

Holding

Yes - the delay was unexplained and under Order 45 delay alone suffices to defeat a review

Reasoning

The review application was filed more than one month after the ruling of 9th April 2024, and the Appellant did not explain the delay. Order 45 requires applications to be made without unreasonable delay, and delay alone is sufficient ground to dismiss irrespective of merits.

p. 7

Legal principles established

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  • An alleged failure to consider a particular document, where the substantive issue raised in that document was in fact addressed, does not amount to an error apparent on the face of the record.
  • Delay alone is a sufficient ground to defeat a review application under Order 45.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 45 Rule 1
  • Civil Procedure ActSection 80

Cases cited (17)

  • Ushago Diani Investment Ltd vs Abdulwahab
    [2023] eKLR
  • Hassan vs Kitonga & 2 Others
    [2023] eKLR
  • Manyenyo vs Muhavi & 5 Others
    [2023] eKLR
  • Owners of Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Apondi vs CMB Packaging Kenya Ltd
  • Muthoni Nduati vs Wanyoike Kamau
  • Panalpina (E.A) Ltd vs Ngae
  • Suleiman Murunga vs Nilestar Holdings Ltd
  • Mutathini Farmers Co. vs Kihoto Farmers Co.
  • Mukisa Biscuit Manufacturing Co. vs West End Distributors
  • Attorney General vs Independent Medical Legal Unit
  • Oraro vs Mbaja
  • A.G. Tanzania vs ANAW
  • Pontrilas Investments vs CBK
  • Aviation & Allied Workers Union v Kenya Airways
  • Attorney General & Another v Andrew Mwaura Githinji
  • National Bank of Kenya vs Ndungu Njau
On appeal from
Chief Magistrate's Court, Thika
Thika MCL Case No. E131 of 2021
Jurisdiction invoked
First appeal to the High Court from the Chief Magistrate's Court (subordinate court), Civil Procedure Act

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, "Bing v Kibe (Environment and Land Appeal E002 of 2025) [2025] KEELC 8021 (KLR)", Case Analysis (2025). Thika MCL Case No. E131 of 2021 (appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8021/eng@2025-11-19

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