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ELCDismissedKISUMU/MC ELC/E250/2023 (related application dated 21st March, 2025)

Opande v Opondo & another (Environment and Land Miscellaneous Application E042 of 2024) [2025] KEELC 4922 (KLR)

Environment and Land Court
30 June 2025
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to review its eviction ruling because the applicant failed to update it that the counterclaim had been struck out — an appeal, not review, was the right route.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu on a Notice of Motion dated 21st March, 2025 by Oscar Onyango Jonyo (Advocate), seeking review and/or variation of the court's ruling of 20th March, 2025, which had dismissed his application dated 23rd August, 2024 seeking eviction of the 1st Respondent from KISUMU MUNICIPALITY/BLOCK 12/35. The court had declined eviction on the basis that a counterclaim in KISUMU/MC ELC/E250/2023 challenging the Applicant's title was still pending. The Applicant argued there was an error apparent on the face of the record because the counterclaim had been struck out on 20th December, 2024 by Hon. K. Cheruiyot (SPM). The application, brought under Articles 50 and 159 of the Constitution, sections 1A and 3A of the Civil Procedure Act, Order 45 of the Civil Procedure Rules and the Environment and Land Court Act, was unopposed; the Respondents' Counsel (Attorney General) was served but did not attend. The court, E. Asati J, applied section 80 of the Civil Procedure Act and Order 45, adopting the test of error apparent on the face of the record from Muyodi vs ICDC and Nyamogo & Nyamogo vs Kogo. The court found that when the underlying application was heard on 23rd October, 2024, the counterclaim was indeed still pending, having been struck out only later on 20th December, 2024. The Applicant bore the fault of not placing the striking-out ruling before the court before the impugned ruling was delivered. Allowing the counterclaim to be heard had been a proper chance for substantive determination of competing claims to the land. The court found no error warranting review, dismissed the application and ordered no costs, delivering the ruling virtually at Kisumu on 30th June, 2025.

Questions the Court framed

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

  1. 1.Whether there is an error apparent on the face of the record in the ruling delivered on 20th March, 2025 warranting review and/or variation

Key legal issues

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01

Whether the ruling of 20th March, 2025 contained an error apparent on the face of the record warranting review under section 80 of the Civil Procedure Act and Order 45

Holding

No error apparent on the face of the record existed; the ruling correctly reflected the position that the counterclaim was pending at the time the application was heard

Reasoning

The application of 23rd August, 2024 was heard on 23rd October, 2024, before the counterclaim was struck out on 20th December, 2024. As at hearing, the counterclaim was indeed pending, so the court's finding was correct on the material then before it. The Applicant failed to bring the striking-out ruling to the court's attention before the impugned ruling was delivered, so any fault lay with the Applicant, not the court.

p. 4

Legal principles established

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  • An error apparent on the face of the record must be one that stares one in the face with no two reasonable opinions; a merely erroneous or arguable decision is not a ground for review but for appeal

Court orders

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  1. 1.The Notice of Motion application dated 21st March, 2025 is dismissed
  2. 2.No orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 50 and 159 of the Constitution of Kenya, 2010; Section 1A and 3A of the Civil Procedure Act; Order 9 Rule 9, Order 45 Rules 1, 2 and 51 of the Civil Procedure Rules; Sections 1, 13(7) and 19 of the Environment and Land Court Act

Relief refused

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Review and/or variation of the ruling made on 20th March, 2025

No error apparent on the face of the record; at the time the application of 23rd August, 2024 was heard, the counterclaim was still pending, and the Applicant failed to bring the striking-out of the counterclaim to the court's attention before the impugned ruling

p. 4

Costs

No orders as to costs

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.

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.
p. 3Definition of error apparent on the face of the record
The application is therefore hereby dismissed. No orders as to cost.
p. 4Final orders

Issues in the judgment

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minor

Paragraph numbering skips from 21 to 26, and paragraph 17 records the ruling date inconsistently ('scheduled for 27th February, 2024' though context shows 2025)

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, "Opande v Opondo & another (Environment and Land Miscellaneous Application E042 of 2024) [2025] KEELC 4922 (KLR)", Case Analysis (2025). KISUMU/MC ELC/E250/2023 (related application dated 21st March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4922/eng@2025-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.