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ELCDismissedNgong MCELC Appeal (memorandum of appeal dated 28th March 2024)· [2025] KEELC 5584 (KLR)

Ngatia & another v Shisunu (Environment and Land Appeal E012 of 2024) [2025] KEELC 5584 (KLR)

Environment and Land Court
24 July 2025
2,625 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that you cannot use review to fix a legal mistake—wrong legal interpretation must be challenged on appeal.

What this practically means

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Executive summary

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This first-appeal judgment of the Environment and Land Court at Kajiado, delivered by M.D. Mwangi J on 24th July 2025, arises from the ruling of Hon. Pamela Achieng (Senior Principal Magistrate) of 29th February 2024 in Ngong MCELC No. E001 of 2023 dismissing the Appellants' application to review, vary or set aside an order of 25th May 2023 striking out their miscellaneous application for eviction of the Respondent from L.R. No. Ngong/Ngong/37863. The trial court had upheld a preliminary objection holding that eviction orders, being final orders, could not issue via a miscellaneous application. On appeal, the court framed three issues: whether the review application was merited, whether the magistrate's ruling ought to be set aside, and costs. Applying the settled principles from Parliamentary Service Commission v Wambora, National Bank of Kenya v Ndungu Njau and Mumby's Food Products Limited, the court held that the Appellants' asserted 'apparent error' was in substance an alleged misapplication of the law, which is long established not to be a ground for review; it is a ground of appeal only. The magistrate was therefore right to find no justifiable ground for review. The court accordingly dismissed the appeal with costs to the Respondent.

Key legal issues

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01

Whether an alleged misapplication of the law constitutes an error apparent on the face of the record warranting review

Holding

It does not; it is a ground of appeal, not review

Reasoning

Relying on National Bank of Kenya v Ndungu Njau and Mumby's Food Products Limited, the court held that misconstruing a statute or reaching an erroneous conclusion of law cannot ground review; such errors are for appeal, otherwise a judge would sit in appeal on their own judgment. The Appellants' only asserted apparent error was the alleged misapplication of the law by the Learned Magistrate, which fails.

p. 6
02

Whether the Learned Magistrate erred in dismissing the review application

Holding

No; the dismissal was correct as no justifiable ground for review existed

Reasoning

The grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules are discovery of new and important matter, mistake or error apparent on the face of the record, and sufficient cause. The Appellants relied only on alleged error apparent and sufficient reason, equated with the magistrate's alleged misapplication of the law, which is not a reviewable ground.

p. 6

Legal principles established

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  • Misapplication of the law or an incorrect exposition of the law cannot be the basis of review
  • An error or omission apparent on the face of the record must be self-evident and not require elaborate argument
  • A first appellate court must re-evaluate the evidence before the trial court and arrive at its own independent conclusion

Court orders

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  1. 1.The appeal by the Appellants is dismissed
  2. 2.Costs of the appeal to the Respondent
On appeal from
Senior Principal Magistrate's Court, Ngong
Ngong MCELC No. E001 of 2023
Jurisdiction invoked
First appeal against ruling of the Senior Principal Magistrate's Court, Ngong (memorandum of appeal dated 28th March 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, "Ngatia & another v Shisunu (Environment and Land Appeal E012 of 2024) [2025] KEELC 5584 (KLR)", Case Analysis (2025). Ngong MCELC Appeal (memorandum of appeal dated 28th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5584/eng@2025-07-24

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