Kathendu v Farmers (Environment and Land Case E046 of 2023) [2026] KEELC 3159 (KLR)
The bottom line
#A Machakos land court dismissed a plaintiff's attempt to revive her struck-out suit through review, confirming that review cannot substitute for an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's notice of motion dated 12 June 2025 met the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
The application failed; no obvious error on the face of the record, new and important matter, mistake or sufficient cause was demonstrated, and the court was functus officio
The court restated the settled principles from Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya and National Bank of Kenya v Ndungu Njau. The plaintiff was merely reiterating reasons why the court should not have struck out the summons and suit, which amounts to re-arguing the case, impermissible in review. The proper remedy was an appeal, not review. The motion was accordingly dismissed with no orders as to costs.
Whether the plaintiff misrepresented facts regarding the filing and service of summons
The court agreed with the defendant that the plaintiff misrepresented facts, clarifying that the plaint was filed without summons contrary to Order 5 Rule 1(3)
The record showed the plaint was filed on 16 June 2023 without summons to enter appearance, contrary to Order 5 Rule 1(3) of the Civil Procedure Rules. The plaintiff was directed on several occasions, including 5 November 2024, to serve summons. Summons were first filed by FIDA Kenya on 28 November 2024 and, with the affidavit of service, were struck out on 10 March 2025.
Legal principles established
#- A court may review its own decision only on the grounds enumerated in Order 45 Rule 1 and Section 80 of the Civil Procedure Act, and not otherwise.
- An application for review is not an appeal and cannot be used to re-argue a case.
- An error apparent on the face of the record must be self-evident and not require elaborate argument.
Court orders
#- 1.The application dated 12 June 2025 is dismissed
- 2.There shall be no orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B and 2A of the Civil Procedure Act and Order 45 and Order 51 of the Civil Procedure Rules (review jurisdiction under Section 80 of the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathendu v Farmers (Environment and Land Case E046 of 2023) [2026] KEELC 3159 (KLR)", Case Analysis (2026). ELC Case No. E046 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3159/eng@2026-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.