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ELCDismissed· [2026] KEELC 2130 (KLR)

Garden Hotel Limited v Maingi & 2 others (As the Legal Representatives of the Estate of Laban Maingi Kitele - Deceased) (Environment and Land Case 15 of 2020) [2026] KEELC 2130 (KLR)

Environment and Land Court of Kenya
21 April 2026
AKA. Y. Koross
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Machakos refused to review its earlier ruling, confirming that disagreements with a decision must go on appeal, not review.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) on a notice of motion dated 26 May 2025 by the plaintiff, Garden Hotel Limited, seeking review, variation and/or setting aside of the court's ruling of 11 March 2025 under Sections 3A and 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules. The impugned ruling had struck out the plaintiff's application because the incoming firm, B.M Mung'ata & Co. Advocates, had not filed a notice of change of advocates under Order 9 Rule 5, and had declined to set aside ex parte orders issued on 18 October 2023. The plaintiff argued there was an error apparent on the face of the record because the court failed to consider a consent between the erstwhile and incoming advocates, and that the ruling turned on technicalities contrary to Article 159 of the Constitution. The defendant, through the replying affidavit of Elizabeth Ngii Maingi, administrator of the deceased's estate, opposed the motion as an attempt to re-argue decided issues without new evidence or apparent error. The court framed one issue: whether the motion met the threshold for review. Applying the Supreme Court's principles in Parliamentary Service Commission v Wambora and the Court of Appeal's decision in National Bank of Kenya Ltd v Ndungu Njau, the court held that the complaints amounted to grounds of appeal, not review; the consent had never been adopted as an order of court; and the impugned ruling had also considered the motion on its merits. The court also struck out the defendant's submissions for breaching page-limit directives, citing the Okoiti decision. The motion was dismissed with costs in the cause, and parties were directed to exchange written submissions within 30 days in the concluded main matter, with a mention before Hon. Lady Justice A. Nyukuri for a judgment date.

Key legal issues

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Whether the notice of motion dated 26 May 2025 meets the legal threshold for review of the ruling of 11 March 2025

Holding

The motion did not meet the threshold; the grounds raised amounted to grounds of appeal rather than grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Reasoning

The court applied Section 80 CPA and Order 45 Rule 1(1), and the principles in Parliamentary Service Commission v Wambora and National Bank of Kenya v Ndungu Njau. The plaintiff's complaint that the court ignored a consent between advocates and relied on technicalities was a challenge to the court's construction of Order 9 Rule 5 and Article 159, which is a matter for appeal. The consent was never adopted as an order of court, and the impugned ruling had also considered the motion on its merits. No error apparent on the face of the record or sufficient reason was demonstrated.

p. 9

Legal principles established

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  • Review is not an appeal; a complaint that the court misconstrued a statutory provision is a ground of appeal, not a ground for review
  • The conditions in Order 45 Rule 1(1) must be proved by the applicant and the court exercises judicious discretion

Court orders

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  1. 1.The notice of motion dated 26 May 2025 is dismissed with costs in the cause
  2. 2.The parties are directed to exchange written submissions within 30 days
  3. 3.A mention date to be given before Hon. Lady Justice A. Nyukuri for the purpose of issuing a judgment date
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act, Order 45 Rules 1, 2 and 3 and Order 51 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, "Garden Hotel Limited v Maingi & 2 others (As the Legal Representatives of the Estate of Laban Maingi Kitele - Deceased) (Environment and Land Case 15 of 2020) [2026] KEELC 2130 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2130/eng@2026-04-21

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