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ELCDismissedLand Case Appeal E140 of 2025· [2026] KEELC 5659 (KLR)

Mohamed v Musyoka & 2 others

Environment and Land Court
24 September 2026
MKMohammed N. Kullow
1,789 words in judgment
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The bottom line

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The Environment and Land Court refused to review its earlier ruling, confirming that losing parties cannot use review applications to re-argue settled issues.

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 Nairobi (Kullow, J) on the Applicant's Notice of Motion dated 16th April 2026 seeking review, setting aside or vacation of the court's ruling of 10th April 2026, in which his application to strike out the Appellant's Memorandum of Appeal had been dismissed. The Applicant argued there was an error apparent on the face of the record because the court had failed to consider his supplementary affidavit of 20th February 2026 showing that the lower court in MCELC E421 of 2025 had determined the review application on 10th November 2025; on that basis, he contended, the appeal should be struck out since the Appellant had opted for review. The Respondent opposed, contending the application was a disguised appeal, raised no error apparent on the face of the record, and that the court had already dealt with the legal effect of the notice of withdrawal of the review application. The court framed a single issue: whether review of the orders of 10th April 2026 was warranted. Applying Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules, and the Supreme Court of India's decision in Ajit Kumar Rath, the court held that the matters raised in the supplementary affidavit had already been addressed; that a decision rendered on an application that was a nullity (following the notice of withdrawal) was itself a nullity; and that the Applicant was impermissibly seeking to re-argue the matter and make the court sit on appeal over its own decision. The application was dismissed with costs to the Respondent.

Key legal issues

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Whether the ruling of 10th April 2026 should be reviewed on the ground of error apparent on the face of the record

Holding

No review warranted; the Applicant was attempting to re-open and re-argue issues already determined, which is impermissible

Reasoning

The court held that the matters said to be in the supplementary affidavit of 20th February 2026 had already been addressed in the ruling of 10th April 2026, which found the lower court review application a nullity following the notice of withdrawal. Seeking review merely because of dissatisfaction with the reasoning amounts to asking the court to sit on appeal over its own decision, contrary to the principles governing review under Section 80 and Order 45(1).

p. 4

Legal principles established

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  • A decision rendered on an application that is a nullity is itself a nullity
  • Review cannot be used to re-argue a matter already decided; a party cannot ask the court to sit on appeal on its own decision

Court orders

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  1. 1.The Notice of Motion application dated 16th April 2026 is dismissed
  2. 2.Costs of the application to the Respondent
On appeal from
Chief Magistrate's Court (lower court, MCELC E421 of 2025)
MCELC E421 of 2025
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules (review jurisdiction)

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, "Mohamed v Musyoka & 2 others", Case Analysis (2026). Land Case Appeal E140 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5659/eng@2026-09-24

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