Gobe v Bora (Environment and Land Appeal E005 of 2023) [2025] KEELC 4300 (KLR)
The bottom line
#A Kenyan land court refused to review its own judgment, confirming that forgotten court submissions don't invalidate a ruling and disputes over errors belong on appeal.
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 applicant has established and or satisfied the threshold of review or otherwise
- 2.whether a failure to take into account submissions negates a judgment of the court or otherwise
Key legal issues
#Whether the applicant satisfied the statutory threshold for review under order 45(1) of the Civil Procedure Rules 2010
The applicant failed to meet the threshold. The only ground invoked was non-consideration of written submissions; no error or mistake apparent on the face of the record was demonstrated, and the applicant did not prove the submissions were duly filed on the e-platform.
An applicant for review must plead the specific ground and place credible evidence before the court, discharging the burden on a balance of probability. Review lies only for an error apparent on the face of the record, being an error of law discernible at a glance. The judgment contained deliberate, well-reasoned findings; any error would be an erroneous view curable only by appeal. No new and important evidence was involved since submissions are not evidence.
Whether a failure to take into account written submissions invalidates a judgment
No. Failure to consider duly filed submissions does not vitiate a judgment; cases are decided on evidence and the law, and submissions are not evidence.
The court, as a first appellate court, was duty-bound under section 78 of the Civil Procedure Act to re-evaluate the entire record and draw its own conclusions of fact and law, which it did. Citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, submissions are merely 'marketing language' and cannot substitute for evidence; many cases are decided without hearing submissions. Hence non-consideration of the applicant's submissions, whose filing was itself unproven, could not invalidate the judgment.
Legal principles established
#- Review lies only for an error or mistake apparent on the face of the record, being an error of law discernible at a glance without elaborate argument.
- A failure to take into account duly filed written submissions does not invalidate or vitiate a judgment; cases are determined on evidence and the law, and submissions do not constitute evidence.
- An erroneous view of the issues, as distinct from an error apparent on the face of the record, can only be remedied on appeal and not by review.
- The burden of demonstrating a basis for review lies on the applicant and must be discharged on a balance of probability; omnibus accusations are insufficient.
Court orders
#- 1.The Application dated 16th April 2025 be and is hereby dismissed.
- 2.Cost of the Application be and are hereby awarded to the Respondent [appellant in the main suit]
- 3.The Cost in terms of clause[ ii] shall be agreed upon and in default same to be taxed in the conventional way.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent and review jurisdiction under order 45 (1) of the Civil Procedure Rules 2010; appellate powers under section 78 of the Civil Procedure Act Chapter 21 Laws of Kenya
Relief refused
#Amendment, review or setting aside of the judgment delivered by Oguttu Mboya J on 7th April 2025, and admission of the submissions filed on 9th October 2024
The applicant failed to meet the statutory threshold for review under order 45(1); no error or mistake apparent on the face of the record was demonstrated, and the filing of the submissions was not proven. Any erroneous view can only be remedied on appeal.
Costs
Costs of the application awarded to the Respondent (appellant in the main suit), to be agreed and in default taxed in the conventional way.
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.
The Application dated 16th April 2025 be and is hereby dismissed.
Cost of the Application be and are hereby awarded to the Respondent [appellant in the main suit]
a review can only be accrued on the basis of an error or mistake apparent on the face of the record. The error or mistake on the face of record must relate to an error or mistake or law and not one of fact.
there is a distinction between an erroneous view; or mere error on one hand; and error on the face of record. The latter lends itself to review, while the former can only be remedied vide appeal.
the failure to take into account the written submissions by a party[ provided the submissions were duly filed] does not found a basis to vitiated and or invalidate a judgment. For good measure, cases are determined on the basis of evidence and the law.
Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid.
Issues in the judgment
#The judgment contains multiple typographical errors, e.g. 'ant' for 'and' and 'ahs reference' for 'has reference'.
Sub-paragraph 1 and 2 of the judgment are blank, and the case number/title of the substantive appeal is not stated in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gobe v Bora (Environment and Land Appeal E005 of 2023) [2025] KEELC 4300 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4300/eng@2025-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.