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ELCAllowedELC Appeal No. E030 of 2024· [2026] KEELC 1172 (KLR)

Kionga Investments Company & another v Kimani (Environment and Land Appeal E030 of 2024) [2026] KEELC 1172 (KLR)

Environment and Land Court
26 February 2026
GKG Kemei
2,429 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated an appeal after finding a missed court ruling was an honest clerical oversight, not carelessness.

What this practically means

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Executive summary

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The Appellants, by a Notice of Motion dated 8/10/2025 brought under Article 159(2)(d) of the Constitution, Sections 80, 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, sought review of the court's judgment of 30/9/2025, reinstatement of their appeal, and admission of a Supplementary Record of Appeal. They contended that the appeal was struck out for want of leave to appeal out of time, yet such leave had in fact been granted by Hon. Justice J.A. Mogeni on 4/3/2024 in Milimani ELC Miscellaneous Application No. E109 of 2023, a ruling inadvertently omitted from the Record of Appeal owing to a bona fide belief that the files were being processed jointly pursuant to a linking order of 13/5/2024. The Respondent opposed, arguing the application was an abuse of process, that review could not substitute for appeal, that no new evidence, error apparent on the face of the record or sufficient cause was demonstrated, and that finality in litigation required closure. In a Further Affidavit the Appellants maintained that the grounds for review are disjunctive and that counsel's inadvertent omission, promptly explained, constituted sufficient cause without demonstrated prejudice. The court framed a single issue: whether the Appellants had established a case for review. It reviewed Section 80 and Order 45 Rule 1, applied the Indian Supreme Court's dictum in Ajit Kumar Rath, and adopted the Shanzu Investments/Wangechi Kimita line that 'any other sufficient reason' need not be analogous to the enumerated grounds. Finding that leave had indeed been granted but the ruling was never brought to the court's attention, the court allowed the review, set aside the judgment of 30/9/2025 in its entirety, reinstated the appeal for hearing on the merits, admitted the Supplementary Record of Appeal upon payment of requisite fees, and ordered costs to abide the outcome of the appeal.

Key legal issues

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Whether inadvertent omission of a ruling granting leave to appeal out of time from the Record of Appeal constitutes sufficient reason for review

Holding

Yes - the leave had in fact been granted but the ruling was not brought to the court's attention when the appeal was struck out; this justified review and reinstatement of the appeal.

Reasoning

The court reviewed Section 80 of the Civil Procedure Act and Order 45 Rule 1, noting the grounds are available including 'any other sufficient reason'. Relying on Shanzu Investments Ltd and Wangechi Kimita, it adopted the position that 'any other sufficient reason' need not be analogous to the other enumerated grounds. The annexures showed leave to appeal out of time had been granted by Hon. Justice J.A. Mogeni on 4/3/2024 in ELC Misc. Application No. E109 of 2023, but this ruling was omitted from the record through inadvertence. The court held that oversight sufficient to warrant review, vacated its judgment of 30/9/2025 and reinstated the appeal for hearing on the merits, also admitting the Supplementary Record of Appeal.

p. 5

Legal principles established

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  • The grounds for review under Order 45 Rule 1 include 'any other sufficient reason', which the court may apply at its unfettered discretion.

Court orders

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  1. 1.The judgment delivered on 30/9/2025 is reviewed, varied and/or set aside in its entirety and the appeal is reinstated for hearing and determination on its merits
  2. 2.The Appellants' Supplementary Record of Appeal is admitted upon payment of the requisite court fees
  3. 3.The costs of the application do abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (4)

  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased) vs Kariuki Marega & Another
    (2018) eKLR
  • Shanzu Investments Ltd vs Commissioner of Lands
    [1993] eKLR
  • Wangechi Kimita & Another vs Mutahi Wakabiru
    CA No 80 of 1985 (unreported)
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 80, 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rule 1 of the Civil Procedure Rules

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, "Kionga Investments Company & another v Kimani (Environment and Land Appeal E030 of 2024) [2026] KEELC 1172 (KLR)", Case Analysis (2026). ELC Appeal No. E030 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1172/eng@2026-02-26

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