Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (application dated 24th September 2024)

Muntukei v Magana Holdings Limited & another (Environment and Land Case 796 of 2017) [2025] KEELC 5244 (KLR)

Environment and Land Court, Kajiado
10 July 2025
MMM.D. MWANGI
937 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Kajiado Environment and Land Court struck out a landowner's attempt to revive his dismissed land suit because his application cited the wrong procedural rule entirely.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kajiado determines a notice of motion dated 24th September 2024 by the Plaintiff, Paul Kiroket Ole Mutukei, seeking review of the court's decision of 21st September 2023 dismissing his suit for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules. The Plaintiff explained that he was unaware of the notice to show cause, that his advocate had been ailing and passed away in August 2023, and that he was always ready to prosecute the suit. The 1st Respondent opposed, arguing that the application was fatally incompetent and vexatious, that the Plaintiff took a year after dismissal to file it, and that the Respondent had relied on the finality of the dismissal to withdraw its appeal in Nairobi Court of Appeal No. 462 of 2018, and had suffered prejudice including financial costs and disruption. The court observed that Order 17 rule 6, introduced by Legal Notice No. 151 of 2020, is the specific provision for reinstatement of suits dismissed under Order 17, whereas the Plaintiff invoked Order 45 rule 1(1) review without pleading any of its grounds - discovery of new matter, error apparent on the face of the record, or other sufficient reason. Following Mariga & 2 others v Mariga & another (2024) KECA 470 (KLR), Daniel Kimani Njihia v Francis Mwangi Kimani & another (2015) eKLR (Supreme Court), and Michael Mungai v Housing Finance Co. (K) Limited & 5 others (2017) eKLR, the court held that an application hinged on the wrong provisions of the law is liable to be struck out. The application was struck out with costs to the 1st Defendant/Respondent.

Questions the Court framed

#

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

  1. 1.Whether the Plaintiff's application for review dated 24th September 2024 seeking reinstatement of the suit dismissed on 21st September 2023 is competent, having been filed under Order 45 rule 1(1) instead of Order 17 rule 6 of the Civil Procedure Rules

Key legal issues

#
01

Competence of an application for reinstatement of a suit dismissed for want of prosecution filed under Order 45 rule 1(1) rather than Order 17 rule 6

Holding

The application is incompetent and must be struck out because the Plaintiff invoked the wrong provisions of the Civil Procedure Rules and pleaded none of the review grounds

Reasoning

Order 17 rule 6, introduced by Legal Notice No. 151 of 2020, is the specific provision enabling a party to apply for reinstatement of a suit dismissed under Order 17 rule 2 for want of prosecution. Order 45 rule 1(1) review requires discovery of new matter, error apparent on the face of the record, or other sufficient reason - none of which was pleaded. Following binding precedents, an application under the wrong provisions is liable to be struck out.

p. 2

Legal principles established

#
  • A court of law must be moved under the correct provisions of the law; an application hinged on the wrong provisions of the law is liable to be struck out

Court orders

#
  1. 1.The Plaintiff's application dated 24th September 2024 is struck out
  2. 2.Costs of the application to the 1st Defendant/Respondent

The bench

#

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court under the Civil Procedure Rules; application under Order 45 rule 1(1) considered against Order 17 rule 6 of the Civil Procedure Rules

Relief refused

#

Review/reinstatement of the suit dismissed on 21st September 2023 for want of prosecution

The application was premised on the wrong provisions of the law - Order 45 rule 1(1) instead of Order 17 rule 6 - and pleaded none of the grounds for review

p. 2

Costs

Costs of the application awarded to the 1st Defendant/Respondent

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.

None of the grounds above has been pleaded in the Plaintifi's application. It is therefore obvious that the Plaintifi has moved the court under the wrong provisions of the law.
p. 2Wrong procedural provision invoked
it is trite law that a court of law has to be moved under the correct provisions of the law
p. 3Correct provisions of law
I hereby strike out the Plaintifi's application dated 24th September 2024 with costs to the 1st Defendant/ Respondent.
p. 3Final orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muntukei v Magana Holdings Limited & another (Environment and Land Case 796 of 2017) [2025] KEELC 5244 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 24th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5244/eng@2025-07-10

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