Mayfair Establishments Limited v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others (Environment & Land Case E099 of 2022) [2025] KEELC 1019 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 30th July, 2024 by the Plaintiff/Applicant has made out a case of the review and setting aside the orders made in the Ruling delivered on the 30th July 2024
- 2.Who meets the costs of the Notice of Motion application dated 30th July, 2024
Key legal issues
#Whether the applicant made out a case for review of the ruling of 30th July 2024
Yes - the court found the earlier ruling contained errors apparent on the face of the record, including failure to await expiry of the 14 days for reply submissions and allowing an adverse-possession counter-claim to be introduced by amendment contrary to Order 37 and the Limitation of Actions Act.
The court reviewed Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the case law on review. It found it had overlooked that the 14-day period for the plaintiff's reply submissions had not lapsed when the ruling was delivered, and that the purported amendment introducing an adverse-possession counter-claim violated the prescribed procedure. Both qualified as errors apparent on the record justifying review.
Who should bear the costs of the application
Costs are discretionary and follow the event; however, in the final orders the court awarded costs of the application despite earlier indicating it elected not to award any costs.
The court restated that costs follow the event under Section 27(1) of the Civil Procedure Act, citing authorities that the successful party is typically entitled to costs unless compelling reasons exist. It initially stated it elected not to award any costs, but the disposition ordered costs of the application, creating an internal inconsistency.
Legal principles established
#- Review is not an appeal and must be confined to error apparent on the face of the record; re-appraisal of evidence amounts to appellate jurisdiction.
- Section 80 of the Civil Procedure Act gives the power of review while Order 45 sets out the restricted grounds and the requirement of no unreasonable delay.
- A claim by way of adverse possession must be instituted in accordance with Order 37 of the Civil Procedure Rules and Sections 7, 13 and 38 of the Limitation of Actions Act.
Court orders
#- 1.The Notice of Motion application dated 30th July, 2024 be and is hereby found to have merit and thus allowed
- 2.The matter to be mentioned on 18th March, 2025 before Justice Hon. Olola for further direction
- 3.There shall be costs to this Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1, 1A, 3, 3A and 80 of the Civil Procedure Act and Order 45 and 51 Rule 1 of the Civil Procedure Rules, 2010
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thatthe Notice of Motion application dated 30th July, 2024 be and is hereby found have merit and thus allowed.
Thatthe matter to be mentioned on 18th March, 2025 before Justice Hon. Olola for further direction.
Thatthere shall be costs to this Application.
A review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court;
The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal.
I am of the view the orders sought are warranted. In view of the foregoing and having regard to the overriding objective of the Environment and Land Court Act, 2011 which is to facilitate the just, expeditious, proportionate and accessible resolution of disputes governed by this Act, I am inclined to exercise my discretion in favour of the Applicant.
Issues in the judgment
#The court's reasoning found the application meritorious and allowed it, yet the conclusion and disposition paragraph state the applicant 'has not made out their case' while still allowing the application.
Contradiction on costs: the court elected not to award any costs, but the final orders direct that costs of the application be paid.
The submissions paragraph refers to the application as dated 18th July, 2024, whereas the application under determination is dated 30th July, 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayfair Establishments Limited v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others (Environment & Land Case E099 of 2022) [2025] KEELC 1019 (KLR)", Case Analysis (2025). Notice of Motion application dated 30th July, 2024 (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1019/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.