Odongo & another v Superior Homes (Kenya) PLC (Environment and Land Appeal E017 of 2025) [2026] KEELC 1036 (KLR)
The bottom line
#The Machakos High Court restored land buyers' case against Superior Homes Kenya, overturning an order that had struck out their entire appeal and pleadings.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 were met
The court found the application merited and reviewed its ruling of 17th December 2025, noting that the Respondent's own submissions confirmed the preliminary objection had been dispensed with after the filing of the consent
The court considered the requirements of Section 80 and Order 45 Rule 1, including the need for an error apparent on the face of the record or other sufficient reason. It perused the record and the Respondent's submissions dated 11th December 2025, which admitted the preliminary objection had been dispensed with after the consent to act was filed. While the consent was filed after the application (so counsel lacked leave at the time of coming on record), the overriding objective and the Respondent's own concession justified review to correct the striking out of the pleadings.
Whether the Respondent's preliminary objection dated 7th April 2025 had been dispensed with
The court found the preliminary objection had effectively been dispensed with after the filing of the consent, as confirmed by the Respondent's own submissions
The court noted that the Respondent's written submissions dated 11th December 2025 stated the preliminary objection was dispensed with after the filing of the consent to act. Although the consent was filed after the application and thus counsel did not have leave of the court when coming on record, this did not save the ruling striking out the pleadings, given the overriding objective and the Respondent's concession on record.
Legal principles established
#- A review may only be granted where the error is self-evident and does not require elaborate argument to establish
- The court's discretion under Section 80 of the Civil Procedure Act must be exercised judiciously and not capriciously
- The overriding objective obliges the court to facilitate just, expeditious, proportionate and affordable resolution of civil disputes
Court orders
#- 1.The Court reviews and varies its ruling delivered on 17th December 2025 which found the Respondent's Preliminary Objection merited and struck out all pleadings and applications filed by the Firm of Achola Odhiambo and Company Advocates and vacated all subsequent orders
- 2.Status quo to be maintained pending hearing and determination of the Appellant/Applicant's Notice of Motion Applications dated 17th March 2025 and 19th March 2025 on merit
- 3.Costs of the application to be in the cause
- On appeal from
- Mavoko Chief Magistrates' Court
- MCELC No. E120 of 2022
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A, 65, 80 & 99 of the Civil Procedure Act (Cap 21); Order 42 Rule 6, Order 45 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo & another v Superior Homes (Kenya) PLC (Environment and Land Appeal E017 of 2025) [2026] KEELC 1036 (KLR)", Case Analysis (2026). MCELC No. E120 of 2022 (Appeal); Notice of Motion dated 19th December 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1036/eng@2026-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.