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ELCDismissedELCLOS NO E023 OF 2025

Esther Njeri Ndungu v Caleb Otieno Ongoma & 2 Others

Environment and Land Court
23 September 2026
MNMwangi Njoroge
3,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi refused to review its earlier injunction ruling, confirming that review only corrects obvious errors, not decisions a party simply disagrees with.

What this practically means

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Executive summary

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The first defendant (applicant) sought review of the court's ruling of 22nd September 2025, which had granted the plaintiff interim injunctive relief in an Originating Summons concerning Lamu Lake Kenyatta 1686, 1687 and 1688 Settlement Scheme land, and further sought striking out of the suit. The applicant argued there was an error apparent on the face of the record because the ruling allegedly proceeded on the mistaken premise that a case was still pending before the Mpeketoni magistrate's court, whereas that suit (MCELC E013 of 2021) had been withdrawn for want of jurisdiction on 5th February 2025 following the Court of Appeal's decision that magistrates' courts lack jurisdiction over adverse possession claims. The plaintiff opposed, contending the application was a delay tactic, that no new evidence had been demonstrated, that the ruling rested on the material placed before the court, and that the proper remedy was an appeal. The court re-examined its impugned ruling and found it had been fully aware the lower court suit was withdrawn, had analysed the parties' affidavit evidence, noted discrepancies in the applicant's title documents, and found a prima facie case independent of the reference to the magistrate's court case. Applying the settled test that an error apparent on the face of the record must be self-evident and not require elaborate argument, and that a possible view is not reviewable error, the court held no reviewable error or new matter existed. The application was dismissed with costs to the plaintiff, and the suit was set down for directions on 27th October 2026.

Questions the Court framed

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

  1. 1.Whether there is an error apparent on the face of the record in the ruling of 22nd September 2025, in that the court allegedly proceeded on the mistaken premise that a subsisting case existed before the lower court
  2. 2.Whether the application for review under Section 80 CPA and Order 45 CPR is merited
  3. 3.Whether the suit should be struck out with costs

Key legal issues

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01

Error apparent on the face of the record as a ground for review

Holding

No error apparent on the face of the record was established; the impugned ruling showed the court was aware the lower court suit had been withdrawn and its injunction rested on the affidavit material and prima facie case

Reasoning

The court re-read its earlier ruling and found it had analysed the parties' affidavits, noted the withdrawal of the Mpeketoni suit, and found a prima facie case from the material on the title's irregular issuance. The reference to the magistrate's court case was supplementary ('also'), not the foundation of the decision. An error requiring long-drawn reasoning or resting on a possible view is not reviewable.

p. 11
02

Review versus appeal as the proper remedy

Holding

The respondent's contention that review was being used to challenge a ruling that should be appealed was consistent with the court's finding that no reviewable error existed

Reasoning

The applicant's real complaint was with the court's evaluation of material and its conclusion on the injunction - matters of erroneous decision, not self-evident error. The court distinguished a mere erroneous decision from an error apparent on the face of the record, adopting the Ndungu Njau and Chino General Merchants formulations.

p. 10

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a possible view adopted by the court cannot be such an error
  • An incorrect exposition of law or misconstruction of a statute is not a ground for review

Court orders

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  1. 1.The application dated 18th December 2025 is dismissed with costs to the plaintiff
  2. 2.The present suit shall be mentioned on 27th October 2026 for directions as to hearing

The bench

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

MN
majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

Relief refused

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Review of the ruling delivered on 22nd September 2025

No error apparent on the face of the record; the court knew of the withdrawal of the lower court suit and the injunction rested on the material before it

p. 12

Striking out of the suit with costs to the applicant

The application for review lacked merit and was dismissed

p. 12

Costs

Dismissed with costs to the plaintiff.

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.

There is thus no error discernible from the face of the record or any new matter or evidence brought before this court to enable it exercise its review jurisdiction under Section 80 CPA and Order 45 CPR, and the application dated 18th December 2025 lacks merit and the same is dismissed with costs to the plaintiff.
p. 12Final orders - dismissal of review application
An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
p. 10Threshold for error apparent on the face of the record
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
p. 11Scope of review jurisdiction
Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible.
p. 11Possible view is not reviewable error

Issues in the judgment

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minor

Conflicting dates for the magistrate's ruling setting aside ex-parte judgment

minor

Mislabelling of the opposing party as 'applicant'

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, "Esther Njeri Ndungu v Caleb Otieno Ongoma & 2 Others", Case Analysis (2026). ELCLOS NO E023 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5565/eng@2026-09-23

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