https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3834

Mwanga v Kariuki t/a Moran Auctioneers & another (Environment and Land Appeal E210 of 2024) [2026] KEELC 3834 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3834 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E210 of 2024 JG Kemei, J June 18, 2026 Between Stephen Okoth Mwanga Appellant and Jovan Kariuki t/a Moran Auctioneers 1st Respondent Doris Waruri Komorori 2nd Respondent Ruling (In respect of the Appellant’s application dated 24/10/2025) 1.Judgment in respect of this appeal was entered on 22/10/2025, by which the Court dismissed the appeal and awarded costs in favour of the Respondents. The Appellant has now moved the Court by application dated 24/10/2025, which is said to be anchored in the provisions of Article 159 of the Constitution, Sections 3A and 80 of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules. The Appellant seeks, in the main, orders that;a.The Judgment and all consequential orders delivered by this Honourable Court on the 22/10/2025 be reviewed, varied and/or set aside in its entirety.b.This Honourable Court be pleased to vary and/or review the Judgment delivered on the 22/10/2025 and thereby address the issues it had isolated in its said judgment; being the jurisdiction of the Subordinate Court and also address the mode of service in detail, which were framed by the Honourable Court for determination.c.The costs of the application be provided for in the cause. 2.The application is premised on the grounds on the face of it and further supported by the Affidavit of Stephen Okoth Mwanga of even date. The deponent states that the Court had isolated two core issues for determination, that is; service of documents and the jurisdiction of the Subordinate Court in MCELC No. E523 of 2023 but failed to address either issue conclusively or give a clear direction thereon. It is contended that this omission constitutes an error apparent on the face of the record, warranting review and setting aside of the judgment under Order 45 Rule 1 of the Civil Procedure Rules. 3.The Appellant further asserts that the Court did not fully interrogate the mode of service, particularly the contested correctness of the email address, and entirely failed to address the jurisdictional question, which was a fundamental ground of the appeal. He states that the omission constitutes an error apparent on the face of the record, which is a sufficient ground for review and for setting aside the judgment. He argues that the oversight, evidenced by service on the wrong email address, occasioned a miscarriage of justice and violated the Appellant’s constitutional right to a fair hearing under Article 50 of the Constitution. He asserts that the Court retains inherent jurisdiction to review its decision and to ensure justice is administered without undue regard for procedural technicalities. The Affiant urges the Court to review and set aside the impugned judgment in the interests of justice. Respondents’ Replying Affidavit 4.By reference to the Replying Affidavit sworn by the 2nd Respondent on 29/5/2026, the Respondents contend that the application does not meet the threshold for a review. The deponent avers that a review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules is available only where there is a clear error apparent on the face of the record or the discovery of new and important matter that could not earlier be produced. The instant application discloses neither newly discovered evidence nor any manifest error on the record. She avers that the Applicant is raising entirely new matters not previously pleaded, that the mode of service and the Court’s jurisdiction were not pleaded, and that the original complaint before the Court concerned only the date of service. The deponent states that a review cannot be sought on unpleaded matters, and that any evidence at variance with the pleadings must be disregarded. 5.The deponent avers that even if the Court were inclined to entertain the allegations concerning the mode of service, the deponent argues that such an issue does not constitute an error apparent on the face of the record. That proving those allegations would require detailed examination, including expert evidence on documents, whereas an error apparent must be self-evident and discoverable without a long process of reasoning. The Applicant’s averments, the deponent argues, cannot be established without a protracted evidentiary inquiry. 6.The deponent further states that the Applicant seeks to relitigate matters already determined, effectively asking the Court to sit in appeal over its own judgment. She contends that grievances concerning which conclusions, issues, or evidence the Court should have considered are proper subjects of an appeal, not a review. She avers that the application is an abuse of Court process, as it invites the Court to re-evaluate contested facts, yet review lies only for self-evident errors that are not contested. 7.The Court directed the parties to file their submissions, which they complied with. The Appellant’s submissions are dated 30/1/2026, whereas the Respondents’ submissions are dated 29/5/2026. The Court has read and duly considered the submissions in its analysis and determination. Analysis and Determination 8.The sole issue for determination in this Court’s opinion is whether the Appellant’s application meets the threshold for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. 9.The power of this Court to review its own judgments is discretionary but must be exercised strictly within the confines of the law. The underpinning legal provision for seeking review is found in Section 80 Civil Procedure Act which 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; orb.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.” 10.The above provision is further augmented by Order 45 rule 1 Civil Procedure Rules that;“(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; orb.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.” 11.An Applicant seeking orders of review must demonstrate that;a.There is discovery of new and important matter or evidence, which was not in his Knowledge or could not be produced by him after exercise of due diligence; orb.There is a mistake or error apparent on the face of the record or;c.There is sufficient reason; andd.The application for review must have been made without undue delay. 12.The nature of the error contemplated under Order 45 rule 1(b) of the Civil Procedure Rules is one that is apparent on the face of the record, not one that has to be fleshed out and searched. The Court in the case of Republic vs Dentists Board & another (Misc. Civil application 59 & 63 of 2019) (Consolidated) {2021} KEHC 298 (KLR) (Judicial Review) (16 November 2021) (Ruling) went into great depth to define an error apparent on the face of the record, stating that;“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must 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 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 on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.” 13.The Applicant’s claim is that this Court did not fully interrogate the mode of service used, particularly the contested correctness of the email address, and entirely failed to address the jurisdictional question, which was a fundamental ground of the appeal. This is despite the Court having identified the issues of service of documents and the jurisdiction of the Subordinate Court in MCELC No. E523 of 2023, but failing to address either issue conclusively or to give a clear direction thereon. It is contended that this omission constitutes an error apparent on the face of the record, warranting a review of the judgment. 14.This Court indeed set two issues for determination in its Judgment, as stated by the Applicant. On the issue of jurisdiction, the Court cited the legal provisions on review and held, at paragraph 15, that the Lower Court had the power to review its decision and erred in not doing so. On the second issue of service, the Court, at paragraphs 17 and 18, stated that;“ 17.The issue before the Court was whether the Appellant was served with the application. The Appellant bore the responsibility to present evidence before the Court to prove otherwise. 18.I have seen the affidavit of service filed by the Respondent’s counsel, deposing to service of the impugned application. The Appellant failed to prove otherwise. The deponent of the affidavit of service was not called for cross-examination by the Appellant as to the content of the said affidavit. There was no evidence, therefore, placed before the Court to show that service was not effected.” 15.In the case of Mary Wachuka Kimani -vs- Mark Ng’ang’a Kimani & 2 Others, Nrb ELCC. E076 of 2022, the Court cited the case of Francis Origo & Another –vs- Jacob Kumali Munagala [2005] eKLR, where the Court of Appeal aptly pointed out as follows:“Our parting shot is that an erroneous conclusion of law or evidence is not a ground of review but may be a good ground for appeal. Once the Appellants took the option of review rather than appeal, they were proceeding in the wrong direction.” 16.The Appellant in this matter likewise proceeded in the wrong direction when he opted for a review rather than an appeal. This Court duly pronounced itself on the two issues of jurisdiction and service. If the Appellant is dissatisfied with the Court’s finding, the proper avenue is an appeal, not a review. Inviting the Court to reconsider the issues is tantamount to inviting it to sit in appeal on its own decision, which action the law frowns upon. 17.In conclusion, therefore, the Appellant’s application lacks merit and is hereby dismissed with costs to the Respondent. 18.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the presence of:Mr. Nyakeriga for the AppellantMr. Adier for the RespondentsC/A – Ms Kendi/Ms Yvette Njoroge