Mueke v Mwaniki (Environment and Land Case 221 of 2014) [2026] KEELC 1005 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff should be recalled.
- 2.Whether the plaintiff has met the legal threshold to warrant the review of the orders issued in the impugned ruling.
- 3.Whether the defendant should be barred from raising objections during the hearing of this matter.
Key legal issues
#Whether the plaintiff should be recalled to testify on his amended plaint
Recall allowed; the evidence of the subdivision of the suit property was not reasonably available to him when he testified and was crucial to his case
The court applied the criteria in Susan Wavinya Mutavi v Isaac Njoroge. Having found in its ruling of 30/04/2021 that the subdivision of LR No. Machakos/Mua Hills/601 into Machakos/Mua Hills/1484-1487 was pendente lite, the court held the recall was not intended to fill gaps; the subdivision records were not reasonably available at the time of the plaintiff's testimony, and the defendant cannot benefit from his own illegality. The relief was therefore justified.
Whether the plaintiff met the threshold for review of the orders on adjournment costs
No; the relief was unmerited
Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) require discovery of new and important matter, an error apparent on the face of the record, mistake or sufficient cause. Applying the Supreme Court's guiding principles in Parliamentary Service Commission v Wambora, the court found the plaintiff was only reiterating why costs should not have been imposed, which is impermissible re-argument in review, and held itself functus officio on that ruling.
Whether the defendant should be barred from raising objections during the hearing
No; the prayer was unmerited
The court held the prayer was unusual and encroached on the right to a fair hearing, which is non-derogable under Article 25(c) and guaranteed by Article 50. Citing Muruatetu, Mahamud v Mohamad and Kidero v Waititu, it affirmed that the fair trial guarantee extends to civil proceedings and rests on the natural justice principles of audi alteram partem and nemo judex in causa sua; depriving a litigant of the opportunity to object would undermine these protections.
Non-compliance with page-limit directions on written submissions
The submissions were struck out
The court directed the parties to file written submissions with clear page limitations. Counsel for both sides failed to adhere to the directives and filed extensive arguments. Invoking the Supreme Court decision in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning, the court struck out the non-compliant submissions without unnecessary elaboration.
Legal principles established
#- In reopening a case, the court exercises judicious discretion guided by criteria including prejudice to the opposite party, absence of gaps-filling, absence of inordinate unexplained delay, reasonable diligence in obtaining the evidence, its probable important influence on the result, and apparent credibility
- Review of a discretionary decision is not an appeal and the applicant must show error, mistake or sufficient cause, not re-argue the case
- The right to a fair trial extends to both criminal and civil proceedings and is non-derogable
Court orders
#- 1.Plaintiff's case shall be reopened for him to testify.
- 2.Costs shall be in the cause.
- 3.A hearing date of the main suit shall be issued.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 50(1) and Article 159(2)(b) and (d) of the Constitution of Kenya; Section 19(1) of the Environment and Land Court Act, 2012; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 45 Rules 2 and 5 of the Civil Procedure Rules, 2010
Relief refused
#Review of the costs imposed on the plaintiff for the adjournment of 26/02/2025 and refund of those costs and court adjournment fees by the defendant
The plaintiff failed to demonstrate an error apparent on the face of the record, a mistake or sufficient cause; he was merely re-arguing his case, which is impermissible in review, and the court held itself functus officio
Prayer barring the defendant from raising further objections and/or applications geared at derailing the hearing
The prayer contradicts the non-derogable right to a fair hearing under Articles 50 and 25(c) of the Constitution and the principles of natural justice
Costs of the motion against the defendant
The court ordered costs to be in the cause instead
Costs
Costs shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In reopening a case, the court exercises judicious discretion rooted in law, evidence, and reason.
Plaintifi’s case shall be reopened for him to testify.
Costs shall be in the cause.
A hearing date of the main suit shall be issued.
This court further determines that it is functus oficio in this matter and that the grounds raised are not suitable for review but are appropriate for an appeal.
Issues in the judgment
#The judgment omits the case number and neutral citation of the suit
Internal inconsistency in the chronology of pleadings: the reply to the amended defence and defence to counterclaim is dated 26/04/2023, earlier than the amended statement of defence and counterclaim dated 05/05/2023
Typographical error in the disposition word 'oficio' for 'officio'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mueke v Mwaniki (Environment and Land Case 221 of 2014) [2026] KEELC 1005 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.