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ELCAllowedNotice of Motion application dated 30th July, 2024 (ELC suit, Mombasa)

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)

Environment and Land Court
28 February 2025
4,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, Mayfair Establishment Limited, moved the Environment and Land Court at Mombasa by Notice of Motion dated 30th July 2024 under Sections 1, 1A, 3, 3A and 80 of the Civil Procedure Act and Order 45 and 51 Rule 1 of the Civil Procedure Rules, seeking review, variation and/or setting aside of the court's ruling of 30th July 2024, which had granted the 4th defendant leave to amend her statement of defence to introduce a counter-claim by way of adverse possession against the plaintiff and the 1st defendant. The plaintiff argued the amendment motion was disguised as a defence amendment when it in fact inaugurated a fresh suit; that the adverse-possession counter-claim should have been instituted under Order 37 of the Civil Procedure Rules and Sections 7, 13 and 38 of the Limitation of Actions Act; and that the ruling was delivered before the 14 days allowed for reply submissions had expired - an error apparent on the face of the record. The 4th defendant, Catherine Wekesa, opposed, contending the true nature of the amendment was disclosed in the grounds, that the counter-claim caused no prejudice, and that the plaintiff's remedy was appeal, not review. The court framed two issues: whether review was merited, and costs. Applying Section 80 and Order 45 Rule 1 and authorities including Mbogo v Shah and the court's own decision in Sese v Karezi, Naikuni J held that the earlier ruling overlooked that the 14-day period had not lapsed, and that allowing an adverse-possession counter-claim by amendment violated the prescribed procedure - both errors apparent on the record. The review application was allowed and the matter set for mention on 18th March 2025 before Hon. Justice Olola. The judgment contains internal contradictions: the disposition recites that the applicant had not made out its case yet allows the application, and although the court elected to award no costs, the final orders grant costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Who meets the costs of the Notice of Motion application dated 30th July, 2024

Key legal issues

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01

Whether the applicant made out a case for review of the ruling of 30th July 2024

Holding

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.

Reasoning

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.

p. 9
02

Who should bear the costs of the application

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 30th July, 2024 be and is hereby found to have merit and thus allowed
  2. 2.The matter to be mentioned on 18th March, 2025 before Justice Hon. Olola for further direction
  3. 3.There shall be costs to this Application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 10disposition - review application allowed
Thatthe matter to be mentioned on 18th March, 2025 before Justice Hon. Olola for further direction.
p. 10final orders - mention date
Thatthere shall be costs to this Application.
p. 10final orders - costs
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;
p. 7principles of review
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.
p. 8scope of review
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.
p. 9discretion exercised in favour of review

Issues in the judgment

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material

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.

material

Contradiction on costs: the court elected not to award any costs, but the final orders direct that costs of the application be paid.

minor

The submissions paragraph refers to the application as dated 18th July, 2024, whereas the application under determination is dated 30th July, 2024.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.