https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3157

Muteti v Muia & 5 others (Environment and Land Case Civil Suit 4 of 2015 & Environment and Land Case 61 of 2020 (Consolidated)) [2026] KEELC 3157 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3157 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit 4 of 2015 & Environment and Land Case 61 of 2020 (Consolidated) AY Koross, J May 25, 2026 Between Serah Nduku Muteti Plaintiff and Patrick Mackenzie Muia 1st Defendant Rose Kennedy 2nd Defendant Mwikali Wambua 3rd Defendant Mueni Mulwa 4th Defendant Benson Ndiku Munguti 5th Defendant Kyalo Kimatu 6th Defendant Ruling 1.This ruling concerns the defendants' notice of motion dated 19 January 2026, which they filed, and they seek the following orders from this court: -a.That the ruling delivered by the Honourable Judge on 17th September 2025 expunging from the court records the survey report dated 25th August 2025 be set aside and/or reviewed and the said survey report be admitted as part of the defendants' list of documents.b.Spentc.That the costs of this application be in the cause. 2.The motion is premised on the grounds of the body thereof and the supporting affidavit of the 1st defendant, deposed to on the instant date. He states that on 24th March 2025, the defendants, through their counsel, requested permission from the court to file a survey report on the acreage they occupy and possess in respect of the subject parcel of land. The court gave the defendants seven days to file this report. However, the surveyor hired by the defendants delayed visiting the land and preparing the report. 3.As a result, the defendants could not prepare and file the survey report within the seven days set by the court. The defendants were only able to prepare the survey report, dated 25th August 2025, after the deadline had passed. When the matter was heard on 17th September 2025, the court struck out the survey report from the record because it had been filed after the seven-day period. The delay in filing the report was not due to any action by the defendants, but because the surveyor did not visit the land and prepare the report within the required time. The survey report is central to this case because it addresses the acreage that the defendants possess and occupy on the subject parcel of land. 4.The application was opposed by grounds of opposition filed by the plaintiff dated 25 March 2026, in which the following grounds were raised: -a.The application is an abuse of the court process as the grounds upon which it is rooted are res judicata, and entertaining the same will constitute re-litigation of the said issues.b.The conditions for review as provided under Order 45 of the Civil Procedure Rules have not been discharged by the defendants.c.Considering review under Order 45 of the Civil Procedure Rules is an equitable remedy, the same is not meant to assist an indolent party such as the defendants.d.The application rans a foul the overriding objective under Sections 1A & 1B of the Civil Procedure Act in respect to expeditious disposal of cases. 5.In arguing the application, the defendants filed submissions dated 24 April 2026. Thus, having carefully considered the motion, affidavit, grounds of opposition and defendants’ submissions, including the provisions of the law and judicial precedents, the sole issue for determination is whether the motion meets the legal threshold for review of the orders issued on 17 September 2026. 6.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.” 7.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.” 8.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.” 9.Similarly, 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.” 10.In this case, the application was filed 4 months after the issuance of the impugned ruling, meaning that it was filed with delay, thereby not complying with Order 45, Rule 1 of the Civil Procedure Rules, which mandates that an application for review must be filed with the court that issued the decree or made the order without unreasonable delay. 11.As to the substance of the application, the defendants have advanced the grounds of sufficient cause; however, it is evident that the defendants are arguing on the merits why the court should not have struck out the surveyor’s report. Suffice it to say, and in full concurrence with the grounds of opposition, a scrutiny of the orders sought on the motion shows that, by praying for the orders therein, the defendants are seeking to re-argue their case, which is not permissible in review proceedings. Additionally, in the Parliamentary Service Commission (Supra), a decision which this court adopts, it was held that an application for review is not an appeal or a chance for the applicants to re-argue their case, as in the present case. Hence, this court further finds that it is functus officio and 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. 12.In the end, and for the above reasons and findings, the application dated 19 January 2026 is hereby dismissed. Costs shall be in the cause.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 25TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGE25.05.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Maingi for plaintiff.Mr. Mutinda holding brief for Mr. Mulwa for the 1st-5th defendants.