Mbulo & another v Nyamwaya (Environment and Land Appeal 3 of 2023) [2025] KEELC 6473 (KLR)
The bottom line
#A Kenyan court ruled that challenging a judgment's validity on jurisdictional grounds requires an appeal, not a review application.
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 trial court erred in dismissing the Appellants' Application for Review
- 2.Who to bear the costs of the appeal
Key legal issues
#Whether an alleged lack of jurisdiction of the trial court (Magistrates Court Act coming into force on 2nd January 2016 after the 2015 judgment) constitutes an error apparent on the face of the record or sufficient reason for review
No - jurisdiction is not an error apparent on the face of the record; it requires drawn-out argument and is properly a ground of appeal, not review
The court held that jurisdiction cannot be treated as an error apparent on the face of the record because establishing it requires lengthy argument, and there could conceivably be two opinions. Having been heard and determined on merit, relegating the jurisdictional issue to review would be an abuse of process. Limitation is likewise a jurisdictional question, so the trial court correctly characterized the review application as premised on jurisdiction.
Whether the alleged reliance on a non-existent land control board consent amounted to sufficient reason or error apparent on the face of the record warranting review
None of the grounds advanced met the threshold for review; the trial court did not err in dismissing the application
Applying the test that an error apparent on the face of the record must stare one in the face and not require a long drawn process of reasoning, and that 'any other sufficient reason' must be analogous to the statutory grounds, the court found the grounds relied upon fell outside those categories and did not warrant review of the 2015 judgment.
Legal principles established
#- A question of jurisdiction cannot qualify as an error apparent on the face of the record for purposes of review because it requires lengthy argument to establish; it is more suited as a ground of appeal.
- The ground of 'any other sufficient reason' for review must be analogous to the grounds expressly stated in Order 45 Rule 1 - discovery of new and important matter, or error apparent on the face of the record.
- The issue of limitation of time is an issue of jurisdiction, and a trial court does not err in treating a review application premised on limitation and jurisdiction as one founded on jurisdiction.
Court orders
#- 1.The appeal is dismissed in its entirety with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- trial court (magistrates' court)
- null
- Jurisdiction invoked
- First appeal against a ruling of the trial court dismissing an application for review (Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules)
Relief refused
#Appeal against the trial court's dismissal of the application for review of the judgment of 21st December 2015
None of the grounds amounted to sufficient reason or an error apparent on the face of the record; jurisdictional issues are not errors on the face of the record and are matters for appeal
Costs
Appeal dismissed with costs to the 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.
Having considered the record of appeal, the pleadings and the submissions tendered herein, I find that the appeal lacks merit. The same is dismissed in its entirety with costs to the respondent.
Jurisdiction cannot be considered an error apparent on the face of the record as it is a matter that requires a drawn out argument in order to establish the same.
An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
It has been held severally that “any other suficient reason” is a ground that is analogous to the grounds stated previous to the subrule.
Issues in the judgment
#Inconsistent dates for the underlying judgment across the judgment - described variously as 21st December 2015, 2nd December 2025, 2nd December 2026 and 2nd December 2016
Ground 3 of the memorandum of appeal refers to the judgment date as 2nd December, 2025 while ground 4(b) refers to 2nd December, 2015
Garbled sentence in paragraph 28 of the judgment
Judgment describes the memorandum of appeal as containing 21 grounds while the memorandum as reproduced lists only 11 grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbulo & another v Nyamwaya (Environment and Land Appeal 3 of 2023) [2025] KEELC 6473 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6473/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.