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ELCDismissedNotice of Motion dated 30th April, 2025 (Small Claims Court Appeal, Kisumu)

Odek v Nyang’oro (Environment and Land Appeal E019 of 2023) [2026] KEELC 2710 (KLR)

Small Claims Court (appeal), Kenya
7 May 2026
662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a 2020 default judgment, ruling that unpaid costs are not a valid ground for review.

What this practically means

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Executive summary

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This ruling by E. Asati J at Kisumu determines a Notice of Motion dated 30th April, 2025 brought by the Appellant under sections 3 and 43 of the Small Claims Court Act and Articles 48 and 159 of the Constitution. The Applicant sought review and/or variation of the court's judgment of 30th January, 2025 so as to reinstate the default judgment delivered on 9th March, 2020 and permit execution against the Respondent, together with costs. The application was unopposed; an affidavit of service showed the Respondent was served with the hearing notice but did not attend or respond. The court identified the substantive relief as a review of its own judgment, which had upheld the trial court's ruling setting aside the ex parte judgment, and had only varied the costs direction by awarding thrown-away costs of Kshs. 30,000/-. Applying section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the court held that none of the statutory grounds for review - discovery of new and important matter, error apparent on the face of the record, any other sufficient reason, or lack of unreasonable delay - had been disclosed. The sole ground advanced, the Respondent's non-payment of the thrown-away costs, is not a ground for review; the Applicant's remedy is execution for recovery of the costs. The court further held that, having decided the appeal against the ruling of 6th September, 2023, it became functus officio and lacked jurisdiction to deal with the judgment of 9th March, 2020, which was not the subject of the appeal. The application was dismissed with no order as to costs, the application having been unopposed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court can review and/or vary its own judgment of 30th January, 2025 so as to reinstate the default judgment delivered on 9th March, 2020 and allow execution thereof
  2. 2.Whether the grounds for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules were disclosed
  3. 3.Whether the court, having decided the appeal, is functus officio

Key legal issues

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01

Whether the judgment of 30th January, 2025 could be reviewed

Holding

The application for review failed as none of the grounds in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was disclosed

Reasoning

The court enumerated the four statutory grounds for review: discovery of new and important matter, error apparent on the face of the record, any other sufficient reason, and absence of unreasonable delay. The only ground advanced - the Respondent's failure to pay thrown-away costs of Kshs. 30,000/- - does not fall within any of these grounds. The Applicant's remedy lies in executing against the costs decree, not in reviewing the judgment.

p. 2
02

Whether the court had jurisdiction to reinstate the judgment of 9th March, 2020

Holding

The court lacked jurisdiction because it had become functus officio after determining the appeal, and the judgment of 9th March, 2020 was not the subject of the appeal

Reasoning

The appeal before the court was against the trial court's ruling of 6th September, 2023 setting aside the ex parte judgment of 9th March, 2020. Having decided that appeal on 30th January, 2025, the court exhausted its mandate. The underlying judgment of 9th March, 2020 was not itself the subject of the appeal, so the court could not reopen or reinstate it.

p. 2

Legal principles established

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  • Grounds for review of a judgment are those in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules: discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, brought without unreasonable delay
  • A court that has decided an appeal becomes functus officio and cannot deal with a judgment that was not the subject of the appeal
  • Failure to pay thrown-away costs is not a ground for review; the remedy is execution

Court orders

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  1. 1.The Notice of Motion dated 30th April, 2025 is dismissed
  2. 2.No order as to costs, the application having been unopposed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Trial court (not specified)
Jurisdiction invoked
Sections 3 and 43 of the Small Claims Court Act; Articles 48 and 159 of the Constitution of Kenya 2010

Relief refused

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Review and/or variation of the orders of 30th January, 2025 reinstating the default judgment of 9th March, 2020 and allowing execution

None of the statutory grounds for review was disclosed; failure to pay thrown-away costs is not a ground for review; the court, having decided the appeal, became functus officio

p. 2

Costs of the application

The application was unopposed

p. 2

Costs

No order as to costs (application unopposed)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

None of the grounds has been disclosed in the present application.
p. 2grounds for review
The court, having decided the appeal, became functus oficio and has no jurisdiction to deal with the judgment dated 9th March, 2020, which was not a subject of the appeal.
p. 2functus officio / jurisdiction
However, failure to pay the thrown-away costs is not one of the grounds for review.
p. 2review - non-payment of costs
I find no merit in the application. The Applicant has the remedy of executing for the recovery of the costs. The application is dismissed.
p. 2disposition
As the application was not opposed, there is no order as to costs.
p. 2costs order

Issues in the judgment

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minor

The affidavit of service is dated 11th March, 2026, which precedes the ruling date of 7th May, 2026 but the ruling text sequencing suggests a possible typographical year (application dated 30th April, 2025 supported by a service affidavit dated 11th March, 2026)

minor

The judgment spells 'functus officio' as 'functus oficio' in the operative passage

minor

The Respondent is not named anywhere in the ruling, nor is the appeal case number stated

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, "Odek v Nyang’oro (Environment and Land Appeal E019 of 2023) [2026] KEELC 2710 (KLR)", Case Analysis (2026). Notice of Motion dated 30th April, 2025 (Small Claims Court Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2710/eng@2026-05-07

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