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ELCDismissedNot stated in the judgment· [2025] KEELC 8430 (KLR)

Malinda v Muutu; King’oo (Interested Party) (Environment and Land Case E041 of 2021) [2025] KEELC 8430 (KLR)

Environment and Land Court
4 December 2025
EOE. O. Obaga
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that citing the wrong application in a judgment is an appeal issue, not grounds for review.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Hon. E. O. Obaga, Judge) determines a notice of motion dated 15th May, 2025 by the Defendant/Applicant seeking review and vacation of a ruling delivered on 18th December, 2024 by Lady Justice T. Murigi, in which the Applicant's application to set aside exparte proceedings of 6th October, 2022 and to be awarded costs of the suit was dismissed. The underlying suit had been brought by the Plaintiff seeking declarations that his developments (Mami/Forte Hotel and Lokoo Club/Lounge on parcels Makueni/Unoa/1456, 1474 and 2657) did not encroach on a road reserve and an injunction against demolition; the suit was withdrawn on 6th October, 2022 with no order as to costs, allegedly without notice to the Applicant. The Applicant argued the 18th December, 2024 ruling was fatally flawed because the judge determined the defunct application dated 7th September, 2023 instead of the amended application dated 12th July, 2024, and questioned whether the judge read the submissions. The Respondent opposed, contending the application was an abuse of process and a second attempt on costs. The court framed a single issue: whether the threshold of error apparent on the face of the record was met. It held that the reference to a wrong application did not amount to such an error, since the findings addressed the substance of the matter, and that grievances over non-consideration of submissions and the withdrawal of the suit were grounds for appeal, not review. The court emphasized it cannot sit on appeal from a decision of a fellow judge and dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the reference by the judge to a wrong application in her ruling constitutes an error apparent on the face of the record justifying review

Holding

It does not; the findings in the ruling addressed the main contention in the matter and any perceived error is a matter for appeal

Reasoning

The court found that although the ruling of 18th December, 2024 referred to the application dated 7th September, 2023 rather than the amended application of 12th July, 2024, the findings were on the substance of the matter before the court. An incorrect reference does not meet the self-evident error threshold for review; a party who considers a ruling erroneous must pursue an appeal. Review cannot be used as a second bite at the cherry.

p. 4
02

Whether alleged procedural irregularities in the withdrawal of the suit (in the Applicant's absence) can ground a review

Holding

No; such complaints are grounds of appeal and cannot be brought by way of review

Reasoning

The Applicant contended it had no notice of the mention of 6th October, 2022 at which the suit was withdrawn. The court held that an attack on the ruling of 18th December, 2024, including on the withdrawal of the suit, must be directed to the proper forum on appeal. A judge of the ELC cannot sit on appeal from a decision of a fellow judge of the same court, and the earlier ruling had already noted the appeal avenue.

p. 5

Legal principles established

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  • A complaint that the court considered a wrong application or failed to consider submissions is not a ground for review but a ground for appeal
  • A trial court cannot sit on appeal from a decision of a fellow judge of concurrent jurisdiction; the remedy is appeal

Court orders

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  1. 1.The Applicant's notice of motion dated 15th May, 2025 seeking review is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Review jurisdiction under Order 45 of the Civil Procedure Rules (error apparent on the face of the record) - not expressly cited in the ruling

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, "Malinda v Muutu; King’oo (Interested Party) (Environment and Land Case E041 of 2021) [2025] KEELC 8430 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8430/eng@2025-12-04

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