https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3159

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E046 0F 2023** **CAROLINE MBINYA KATHENDU…………………………………PLAINTIFF** **-VERSUS-** **MAAKO KOMPE FARMERS..….……….....…………………….DEFENDANT** **RULING** 1. This ruling concerns the plaintiff’s notice of motion dated 12 June 2025, and it is presented as being made pursuant to **Sections 1A, 1B, and 2A** of the **Civil Procedure Act,** as well as **Order 45, Order 51** of the **Civil Procedure Rules,** and all other enabling provisions of the law. She seeks the following reliefs from this court: - 2. ***Spent.*** 3. ***The Honourable Court be pleased to review its orders and or directions and reconsider the plaintiff’s suit on the merits.*** 4. ***The Honourable Court be pleased to grant orders reinstating the suit herein for purposes of hearing and determination to its logical conclusion.*** 5. ***That each party bear its own costs.*** 6. The motion is supported by the supporting affidavit of the plaintiff, sworn on the instant date. In brief, she states that she filed the plaint and supporting documents on 5 June 2023, and awaited the court’s issuance of summons for service upon the defendant. On November 5, 2024, the court ordered that summons to enter appearance be issued within 14 days. That later, the summons was duly issued on 19 November, 2024, and the defendant was located and served by a court process server on January 21, 2025. 7. Additionally, all relevant documents were included in the service, and a proper return of service was filed. When the matter was brought before the court on March 10 2025, the court decided to expunge both the summons and the affidavit of service. At the following mention on May 26, 2025, the court struck out the suit for non-compliance, thereby bringing the case to a close. She stated that the court has the discretion and the mandate to review its orders. 8. The motion is strenuously opposed by the defendant’s affidavit, sworn on 5 March 2026, which succinctly informs the court that the supporting affidavit is tainted with falsehoods and fabrications intended to deceive and garner the sympathy of this Honourable Court. The plaint was filed on 5th June, 2023, and the plaintiff has not provided any reasonable explanation for her failure to effect service for a period of over two years. Furthermore, the plaintiff has demonstrated no willingness to proceed with the matter, having taken no steps to move the court for over two years since the suit was filed. 9. As directed by the court, the motion was considered through written submissions filed by counsel **Mr. Dennis Otieno** for the defendant, dated 15 January 2026, and counsel **Mr. Simon Romo** for the defendant, dated 5 March 2026. Now, turning to the substance of the matter at hand and having carefully considered the motion, affidavits, and articulate submissions, including the provisions of the law and judicial precedents relied upon, the sole issue for determination is **whether the motion meets the legal threshold for review of the orders issued on 10 March 2025** and **26 May 2025.** 1. With respect to this issue, the relevant provisions governing the review of court decisions are set out in **Section 80** of the **Civil Procedure Act** and **Order 45, Rule 1** of the **Civil Procedure Rules.** **Section 80** states that; ***“Any person who considers himself aggrieved-(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”*** 1. **Further,** **Order 45 Rule 1 (1) of the Civil Procedure Rules**provides as follows: - *“***(1) Any person considering himself aggrieved—** **(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or** **(b) by a decree or order from which no appeal is hereby allowed,** **and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”** 1. In line with established jurisprudence, courts have interpreted the aforementioned provisions in this way: - **In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR),** the court summarised the following non-exhaustive principles**:** ***“30. The principles which can be culled out from the above-noted authorities are: -*** ***i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.*** ***ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.*** ***iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.*** ***iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.*** ***v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.*** ***vi. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.*** ***vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.*** ***viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.*** ***ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.*** ***x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.”*** In the decision of the **Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau**, which has been cited in a line of court decisions, the court stated as follows on review applications. ***“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. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law.”*** 1. Before proceeding further with the analysis of this matter, and in agreement with the defendant, the plaintiff has misrepresented facts. To clarify, from the record, her plaint was filed on 16 June 2023 without summons to enter an appearance contrary to **Order 5 Rule 1(3)** of the **Civil Procedure Rules.** On several occasions during the pretrial stage, she was directed to serve summons, including on 5 November 2024, with instructions to do so within 14 days. Thereafter, and for the first time on 28 November 2024, FIDA Kenya filed the summons, which was executed on 19 November 2024 (it appears this date is erroneous, as this document shows it is the same summons that FIDA Kenya filed). This summons, which was improperly on record, and her affidavit of service were struck out on 10 March 2025, which was before the firm of **M/s. Sankale & Co. Advocates** filed a memorandum of appearance on 28 March 2025. 2. Having set the record straight, we now revert to the analysis of the issue for determination. In the circumstances of this case, the plaintiff has not demonstrated that the basis of the motion involves an obvious error on the face of the impugned orders, a new and important matter, a mistake, or sufficient cause. She is reiterating reasons why the court should not have struck out the summons and/or suit. However, guided by **paragraph 32** of the Supreme Court’s decision in **Parliamentary Service Commission v. Wambora & 36 others [2018] KESC 74 (KLR),** which held that an application for review is not an appeal or a chance for the applicant to re-argue her case, the court finds that the plaintiff is attempting to re-argue her case, which is not permissible in review proceedings. This court further finds that it is *functus officio* and none of the other alternative prayers sought are available to the plaintiff, and finds that the grounds raised are not suitable for review but are appropriate for an appeal. Consequently, this court finds that the reliefs sought are unmerited. 3. In the end, and for the above reasons and findings, the application dated 12 June 2025 is hereby dismissed. There shall be no orders as to costs. Orders accordingly. **Delivered and Dated at Machakos this 19th day of May, 2026.** **HON. A. Y. KOROSS** **JUDGE** **19.05.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Miss Owino holding brief for Mr. Otieno for the plaintiff/applicant. No appearance for other parties.