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ELCDismissedNot stated in the judgment (amended Notice of Motion dated 19th February 2026 in an appeal)· [2026] KEELC 1837 (KLR)

Kirinya v Thuranira (Environment and Land Appeal E020 of 2025) [2026] KEELC 1837 (KLR)

Environment and Land Court of Kenya
23 March 2026
4,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, respondent in a first appeal, applied by amended Notice of Motion dated 19th February 2026 under Sections 1A, 1B, 3, 3A, 63(e) and 80 of the Civil Procedure Act and Orders 42 rule 6 and 45 rule 1 of the Civil Procedure Rules for review and/or setting aside of the judgment delivered on 5th February 2026 and a stay of execution of the resulting decree. He contended that his written submissions dated 26th January 2026 had been duly lodged in the court tracking system but were ignored by the court, amounting to discovery of new and important evidence and an error apparent on the face of the record. The Respondent opposed, asserting that the Applicant had neither filed nor served submissions within the timelines set on 27th November 2025 and that no ground for review was established. The court framed three issues. On the first, it caused the tracking system to be checked and found the submissions were actually lodged on 2nd February 2026 at 5.15pm, after judgment had been scheduled, and were never served; counsel was criticised for backdating submissions and litigating by ambush. On the second issue, the court held that no ground for review had been pleaded in the application or substantiated: submissions are not evidence, and no error apparent on the face of the record was shown in the court's independent re-evaluation of the trial evidence. The application was dismissed with costs to the Respondent, costs to be agreed or taxed.

Key legal issues

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01

Whether the Applicant duly filed and served his written submissions within the court's directions

Holding

The submissions dated 26th January 2026 were in fact lodged in the court tracking system on 2nd February 2026 at 5.15pm, outside the timelines and after the court had fixed judgment, and were never served

Reasoning

The court commissioned a check of the court tracking system which showed the submissions were filed on 2nd February 2026 at 5.15pm, well after the 21-day deadline and after judgment had been scheduled. Counsel was found to have backdated the submissions and litigated by ambush, contrary to Article 50(1) of the Constitution and sections 1A and 1B of the Civil Procedure Act. Non-compliance should have been addressed by seeking extension of time.

p. 4
02

Whether the application met the threshold for review under Order 45 rule 1

Holding

No ground of review was pleaded or substantiated; the application was defective and legally untenable

Reasoning

The grounds for review are discovery of new and important evidence, error or mistake apparent on the face of the record, or sufficient cause. The Applicant did not disclose any ground in the body of the application, and the arguments on new evidence and apparent error surfaced only in submissions. Non-consideration of submissions is not new evidence, and no error apparent on the face of the record was demonstrated in the court's re-evaluation of the trial evidence.

p. 8

Legal principles established

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  • Submissions are not evidence; failure to consider or file submissions does not constitute discovery of new and important evidence for review
  • A party seeking review must plead the particular ground of review in the body of the application before substantiating it
  • A 'mere error' is distinct from an error apparent on the face of the record; only the latter may ground review
  • Every court process must be served on the adverse party; filing submissions without service amounts to litigating by ambush

Court orders

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  1. 1.The amended Notice of Motion Application dated 19th February 2026 be and is hereby dismissed.
  2. 2.Costs of the Application be and are hereby awarded to the Respondent (the Appellant in the main appeal).
  3. 3.The Cost(s) shall be agreed upon and in default be taxed in the conventional manner.
On appeal from
Lower Court
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(e) and 80 of the Civil Procedure Act, Chapter 21, Laws of Kenya; Order 42 rule 6 and Order 45 rule 1 of the Civil Procedure Rules, 2010

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, "Kirinya v Thuranira (Environment and Land Appeal E020 of 2025) [2026] KEELC 1837 (KLR)", Case Analysis (2026). Not stated in the judgment (amended Notice of Motion dated 19th February 2026 in an appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1837/eng@2026-03-23

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