Bonaya v Maalim (Environment and Land Appeal E001 of 2025) [2026] KEELC 4175 (KLR) (29 June 2026) (Ruling)

Bonaya v Maalim (Environment and Land Appeal E001 of 2025) [2026] KEELC 4175 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 4175 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Environment and Land Appeal E001 of 2025 JO Mboya, J June 29, 2026 Between Sofia Galgalo Bonaya Appellant and Mohammed Ibrahim Maalim Respondent Ruling 1.Before me is the Notice of Motion Application dated the 12.06.2026, brought pursuant to the provisions of Order 40, Order 42 Rule 6 and Order 45 Rules 1 and 2 of the Civil Procedure Rules 2010; Sections 3A, 63[e] And 80 of the Civil Procedure Act, Chapter 21, Laws of Kenya; and the inherent jurisdiction of the court. The reliefs sought vide the application are:i.………………………………………………….spent.ii.There be an order of stay of execution in Isiolo CM’s Court ELC Case No. 67 of 2014 pending the hearing and determination of this application.iii.There be an order of stay of execution in Isiolo CM’s Court ELC Case No. 67 of 2014 pending the hearing and determination of the appeal herein.iv.This Honourable court be pleased to issue a temporary injunction restraining the Respondent, his agent, employees, representatives or any person acting on his behalf from interfering with the property known as parcel No. Kambi Garba/426 and or/Kambi Garba/889 situated in Kambi Garba within Isiolo County pending the hearing and determination of this application.v.This Honourable court be pleased to issue a temporary injunction restraining the Respondent, his agent, employees, representatives or any person acting on his behalf from interfering with the property known as parcel No. Kambi Garba/426 and or/Kambi Garba/889 situated in Kambi Garba within Isiolo County pending the hearing and determination of the appeal.vi.This honorable court be pleased to review the orders issued and delivered on 21.01.2025 to re-open the Appeal herein on merit.vii.That costs of this application be provided for. 2.The application is premised on various grounds. The grounds are: The Applicant filed/lodged a memorandum of appeal dated the 14.01.2025; the Applicant also filed a miscellaneous application seeking extension of time within which to file an appeal; the Applicant thereafter established that the appeal was filed timeously; the Applicant proceeded to and sought leave to withdraw the miscellaneous application; the miscellaneous application was marked as withdrawn on the 21.01.2025; and thereafter the file in respect of the miscellaneous application was marked as closed. 3.Additionally, the Applicant has posited thus: Though the Applicant withdrew the miscellaneous application, the court proceeded to and marked the appeal as withdrawn; however, the appeal was not withdrawn; the marking of the appeal as withdrawn was an error and mistake on the face of the record of the court; and the marking of the appeal as withdrawn has prejudiced the Applicant. 4.Furthermore, the Applicant has contended that: The appeal having been filed within time ought to be heard and determined on merits; the marking of the appeal as withdrawn has exposed the Applicant to execution. In addition, it has been contended that the Respondent has since commenced execution vide Isiolo CMELC No. 67 of 2014; the execution proceedings shall deprive the Applicant of the right to the suit properties; the suit properties are on the verge of being alienated; there is need to protect the suit properties; the protection can only be achieved vide issuance of an order of temporary injunction; and the Applicant has established a basis to warrant the issuance of the said orders. 5.The application is supported by the affidavit of Sophia Galgalo Bonaya, the deponent. The deponent has reiterated and reaffirmed the grounds contained at the foot of the application. In addition, the deponent has annexed various documents including a copy of the receipt attendant to the filing of the appeal. 6.The application was served upon the Respondent. However, the Respondent did not file any response to the application. 7.The application came up for hearing on the 15.06.2026, whereupon learned counsel for the Applicant intimated to the court that the application had been duly served. Moreover, counsel sought to canvass and proceed with the application on even date. Thereafter, the court proceeded to and issued directions pertaining to the hearing and disposal of the application. 8.Learned counsel for the application adopted the grounds at the foot of the application; reiterated the contents of the supporting affidavit; and thereafter highlighted three [3] key issues. The issues are: Whether there exist an error and mistake apparent on the face of record; whether the Applicant has established a basis to warrant review of the orders of the court made on the 21.01.2025; and Whether the Applicant is entitled to an order of temporary injunction. 9.Regarding the first issue, learned counsel for the Applicant has submitted that the Applicant herein proceeded to and filed an appeal, namely; Isiolo ELC Appeal E001 of 2025. In addition, counsel contended that the Applicant also filed a miscellaneous application and which application was assigned as Isiolo ELC Misc. Application number E001 of 2025. 10.It was the further submission by counsel for the Applicant that the Misc. application came up for hearing on the 21.01.2025, whereupon the Applicant sought leave to withdraw the application. In particular, learned counsel has posited that the same realized that the appeal had been filed within time and thus there was no need to extend time for filing of the appeal. 11.Additionally, learned counsel submitted that the miscellaneous application was thereafter marked as withdrawn and the file was closed. Nevertheless, it has been posited that the court proceeded to and also marked the appeal as withdrawn; and thereafter closed the appeal file. 12.Be that as it may, it was submitted that the application for withdrawal only related to the miscellaneous application and not the appeal. To this end, learned counsel has invited the court to find and hold that the closure of the appeal was made in error and by mistake. Counsel has thereafter invited the court to correct the error by way of review and to reinstate the appeal for hearing and determination on merits. 13.To buttress the foregoing submissions, learned counsel for the Applicant has cited and referenced various decisions. The decisions include: Nyamogo and Nyamogo Advocates versus Kogo [2001] EA; And Kimani Versus Njoroge [2022] KECA, respectively. 14.Secondly, learned counsel for the Applicant has submitted that the Respondent has since commenced the process of execution vide the lower court file and hence the suit properties, which underpin the appeal shall be alienated and or disposed of. In this regard, it has been submitted that there exists a lawful cause to warrant the issuance of the orders of temporary injunction. 15.Lastly, learned counsel for the Applicant has submitted that the current application has been filed without undue delay. Moreover, it has been posited that the delay attendant to the filing of the application, if any, has been duly accounted for and explained vide the supporting affidavit. 16.Flowing from the foregoing, learned counsel for the Applicant has submitted that the application before the court is meritorious and thus same ought to be allowed. Towards this end, counsel has invited the court to allow the application; set aside the orders made on the 21.01.2025; and to reinstate the appeal for hearing and determination on merits. 17.I have indicated elsewhere hereinbefore that the Respondent did not file any response to the application. In addition, the Respondent did not attend court and or make any submissions. 18.Having reviewed the application; the supporting affidavit thereto; and upon taking into account the oral submissions by/on behalf of the Applicant, two [2] key issues emerge for consideration and determination by the court. The issues are: Whether the Applicant has established and proven the existence of an error and mistake apparent on the face of record to warrant review or otherwise; and what reliefs ought to issue or be granted. 19.Regarding, the first issue, it is trite and established that a court of law is seized of the requisite discretion to grant an application for review of an order or decree, where the claimant can demonstrate inter alia; the existence of an error or mistake apparent on the face of record. The error or mistake must be one that obtains or is discernable from the face of the record of the court. The error or mistake must not be one in the record of the parties or their legal counsel. 20.Further, and in addition, the discretion of the court to grant review on the basis of an error or mistake on the face of record, can only be invoked and resorted to where the error is apparent, glaring, discernable and seeable, without elaborate interrogation or examination. It must be an error that does not require detailed submissions or analysis. Furthermore, the error must not be one that is capable of attracting two or more interpretations or conclusions. 21.In the case of Nyamogo and Nyamogo Advocates v Kogo [2001] EA 173, the court of appeal highlighted the circumstance[s] in which review can issue and be granted on the basis of an error and mistake on the face of record. In addition, the court also drew the distinction between an error apparent on the face of the record and a mere error; and erroneous conclusion. The court stated as hereunder:“We have carefully considered the submissions made to us by the advocates of the parties to this appeal. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of an error apparent on the face of the record would be made out. 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. 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. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.” 22.Has the Applicant established an error or mistake apparent on the face of the record? To start with, it is important to highlight that what was placed before the court on the 21.02.2025 was the miscellaneous application which sought extension of time within which to file an appeal. It is the said application which was thereafter withdrawn by and at the instance of learned counsel for the Applicant. In addition, it is the miscellaneous application/ File underpinning the application dated 14.10.2025, which was marked as closed. 23.I wish to clarify that the appeal; Isiolo ELC Appeal No. E001 of 2025 [if the appeal was ever filed] was never placed before the court. Furthermore, the court did not deal with the appeal. For the avoidance of doubt, there is a clear distinction between a miscellaneous application seeking for extension of time to file an appeal; and an appeal. In this regard, if the Applicant duly filed the appeal, in the manner contended, then the appeal [subject to verification by the Deputy Registrar] remains in existence and can thereafter accrue proceedings in the usual manner. 24.Nevertheless, I wish to point out that the orders complained of and which underpins the application for review, only relates to and concern the miscellaneous application. The order did not touch on and or concern the appeal. 25.In the premises, and taking into account the records of the court, it is my finding and holding that the orders sought to be reviewed did not mark any appeal as withdraw. In addition, the orders complained of did not close the appeal file. On the contrary, what was withdrawn was the miscellaneous application and not [sic] an appeal. 26.Flowing from the foregoing, I am unable to discern any error or mistake on the face of the record, to warrant review and or variation. Moreover, the review of orders complained of [if at all] can not restore an appeal. Besides the review of the orders complained of can only restore the miscellaneous application which was marked as withdrawn. 27.In the premises, the contention by the Applicant that there is an error and mistake on the face of record of the court, was/is based on misconstruction or misapprehension of the proceedings that were taken on the 21.01.2025 and the consequential orders arising therefrom. 28.Next is the issue of as to what reliefs ought to be granted. The Applicant has sought various reliefs, including: review of the impugned orders; reinstatement of the appeal; granting of an order of temporary injunction and granting an order of stay of execution pending the [sic] the appeal. 29.While dealing with issue number one, I have pointed out there is no error or mistake apparent on the face of the record. Barring repetition, I beg to state that the impugned orders did not mark any appeal as withdrawn. The orders do not therefore lend themselves to review. 30.Other than the foregoing, the Applicant has sought for orders of temporary injunction and stay of execution pending [sic] the appeal. It is important to underscore that this court is seized of jurisdiction to grant an order of temporary injunction pending appeal. The jurisdiction is donated vide the provisions of Order 42, Rule 6 [6] of the Civil Procedure Rules, 2010. 31.Be that as it may, the jurisdiction in question can only be engaged with once the appeal is duly filed. In this case, there is a debate as to whether or not an appeal was duly filed or whether what was filed was the miscellaneous application, which was subsequently withdrawn. In this regard, the Applicant is called upon to liaise with the Deputy Registrar and firm out the question of the appeal file. 32.With regard to an order of stay of execution pending appeal, I wish to point out that the court is equally bestowed with jurisdiction to engage with same. In addition, there is no gainsaying that the court can grant such an order, provided that an appeal has since been filed. [See Order 42 Rule 6 [1] and [2] of the Civil Procedure Rules, 2010]. 33.Again, the Applicant will need to sort out the confusion surrounding the filing of [sic] the appeal. I am sure that once the question/confusion is addressed, the Applicant shall be within her rights to pursue all such orders, subject to the law. 34.Be that as it may, I am not sure that the appeal, which is contended to have been withdrawn, was indeed filed. However, this is an administrative issue which the deputy registrar should address and resolve. In addition, the filing of the appeal [if any] should then be separated from the miscellaneous application, namely; Isiolo ELC Misc. Application number E001 of 2025, which was withdrawn and the filed marked as withdrawn. Conclusion 35.It was the Applicant who sought to persuade the court that there was an error or mistake apparent on the face of the record. To this end, it was incumbent upon the Applicant to demonstrate the existence of the error. Sadly, the Applicant did not demonstrate any error or mistake apparent on the face of the record. 36.Furthermore, the Applicant was equally called upon to lay a basis for the grant of the orders of temporary injunction pending appeal; or stay of execution pending appeal. However, I have pointed out that the twin orders can only be engaged with, if and only if, it is established that an appeal has been filed. 37.As things stand, the Deputy Registrar must undertake the administrative exercise and ascertain whether the appeal was duly filed; if so, separate the appeal file from the miscellaneous application; advice the Applicant accordingly; and thereafter facilitate the Applicant’s rights of access to justice. Final orders: 38.Flowing from the foregoing, it must have become apparent that the application herein is not in tandem with the proceedings that were undertaken on the 21.01.2025; and the orders arising therefrom. In this regard, the application is premature. 39.In the premises, the final orders that commend themselves to the court are:i.The Application be and is hereby struck out.ii.There be no orders as to costs.iii.The ruling herein shall be served upon the Deputy Registrar of the court, who shall thereafter undertake the administrative exercise alluded to in the body of the ruling. 40.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON 29TH JUNE, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: Zakayo /MukamiMr. Mwirigi Mbaya for the ApplicantN/A for the Respondent