Nduati v Kiamioro Building Co Ltd (Environment and Land Appeal E008 of 2025) [2026] KEELC 2372 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate correctly interpreted Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules
Yes. The trial magistrate correctly applied the review criteria, and the Appellant did not meet them: the alleged letter of termination was known to him from 2018, was not mentioned in his defence or amended defence, and the review application was filed after inordinate delay of almost ten months.
The court set out the three statutory grounds for review and the rider against unreasonable delay. It agreed with the trial magistrate that the Appellant was aware of the letter dated 22-8-2018 since it predates his defence dated 1-2-2022 and his amended defence dated 14-2-2023, neither of which mentioned it. The letter could not be new evidence, and the nearly ten-month delay in filing the review was inordinate. The trial magistrate was justified in rejecting the letter as new evidence.
Whether the trial magistrate disregarded the supporting affidavit on how the Appellant acquired the letter
No. The affidavit restricted itself to discovery of the letter after the decree and did not plead error apparent on the face of the record or mistake, so the trial magistrate could not venture beyond what was pleaded.
The court held that the supporting affidavit did not aver an error on the face of the record or a mistake; it claimed only post-decree discovery of the letter. The trial magistrate could not go into unpleaded areas and exhaustively dealt with the letter issue. The appellate court found no fault with that finding and concurred that the motion was frivolous and an abuse of process.
Legal principles established
#- For a decree or order to merit review it must satisfy one of the Order 45 grounds - discovery of new and important matter, error apparent on the face of the record, or other sufficient reason - and the application must be filed without unreasonable delay
- On a first appeal the court must reconsider and re-evaluate the evidence afresh and draw its own conclusions, while making allowance for the fact that it did not hear or see the witnesses
Court orders
#- 1.The Appellant's appeal is dismissed with costs to the Respondent
- On appeal from
- Magistrates' Court (Murang'a)
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the ruling of the trial magistrate dismissing an application for review under Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduati v Kiamioro Building Co Ltd (Environment and Land Appeal E008 of 2025) [2026] KEELC 2372 (KLR)", Case Analysis (2026). MRG ELCLA E008 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2372/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.