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ELCAllowedNot stated in the judgment (Thika ELC matter)

Kamau v Wahome & 20 others (Environment and Land Case 81 of 2019) [2025] KEELC 6726 (KLR)

Environment and Land Court
7 October 2025
MOMogeni
1,400 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 Thika court ordered the record of an earlier land case brought into the current dispute to test claims it had already been decided.

What this practically means

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Executive summary

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This Ruling by the Environment and Land Court at Thika (Mogeni J) determines a Notice of Motion dated 25/02/2025 brought by the 14th Defendant through its counsel, Leo Masore Nyang'au Advocate, under Order 14 Rule 6 of the Civil Procedure Rules. The Applicant sought an order that the Court send for and inspect the record of Thika Chief Magistrate MCL & E No. 3 of 2019 (formerly Thika ELC Case No. 310 of 2018), Elizabeth Wanjiru Gichuhi v Mwihoko Housing Company Ltd, in which the 14th Defendant was plaintiff and judgment was delivered in its favour on 6th October 2020 by the then Chief Magistrate, Hon. I. M. Nangea. The Applicant explained that he lacked a copy of the judgment when filing the trial bundle and at the first hearing, and relied on a pleaded claim that the instant suit is res judicata. The Plaintiff/Respondent objected, contending that the judgment was a nullity because Hon. Nangea had been promoted to Judge before delivering it, and that calling for a subordinate court file is a suo motu function requiring no application. The application was unopposed formally and canvassed by written submissions, only the Applicant's being filed. Framing two issues - whether the motion was merited and who should bear costs - the Court held that the constitutional guarantees of fair hearing (Articles 25(c), 47 and 50(1)) and audi alteram partem, together with Order 14 Rule 6, justified calling for the file whether by application or suo motu, to enable a just conclusion. The Court allowed the motion, directed the Deputy Registrar to send for the record within seven days, vacated the hearing of 7/10/2025, fixed the next hearing for 3/12/2025, and ordered costs of the application to be in the cause.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion dated 25/02/2025 is merited
  2. 2.Who will bear the Costs of Notice of Motion application

Key legal issues

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01

Whether the court should send for and inspect the record of the Thika subordinate court case

Holding

The application under Order 14 Rule 6 was allowed; calling for the file would shed light on the suit, including the objection that the judgment of 6/10/2020 was delivered by a magistrate already promoted to Judge.

Reasoning

The Court anchored the decision on the fair-hearing guarantees of Articles 25(c), 47 and 50(1) of the Constitution and the audi alteram partem principle, holding that the applicant had satisfied Order 14 Rule 6 on materiality and inability to obtain an authenticated copy. Whether the calling of the file was by application or suo motu, the Court found inspection would assist a just conclusion.

p. 3
02

Costs of the application

Holding

Costs were directed to abide the cause because the Applicant, noting the inconvenience caused to the Respondent, offered to pay the costs of the application.

Reasoning

Although the general rule is that costs follow the event under Section 27(1) of the Civil Procedure Act, the Court identified the Applicant's offer to pay costs as a compelling reason to depart from that rule and directed that costs be in the cause.

p. 4

Legal principles established

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  • A court may, of its own motion or on application of a party, send for and inspect the record of another suit or proceeding where the record is material and an authenticated copy cannot be obtained without unreasonable delay or expense.
  • Costs follow the event, with the successful party typically entitled to costs unless there are compelling reasons to decide otherwise.

Court orders

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  1. 1.Notice of Motion Application dated 25/02/2025 found to have merit and allowed
  2. 2.Deputy Registrar directed to send for the record of Thika Chief Magistrate MCL & E No. 3 of 2019 (formerly Thika ELC Case No. 310 of 2018) Elizabeth Wanjiru Gichuhi v Mwihoko Housing Company Ltd for inspection within seven (7) days
  3. 3.Hearing date of 7/10/2025 vacated to allow the Court to examine the record
  4. 4.Next hearing fixed for 3/12/2025
  5. 5.Costs of the application to be in the cause

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Order 14 Rule 6 of the Civil Procedure Rules, Cap 21 Laws of Kenya

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.

That an order be and is hereby issued directing the Deputy Registrar to send for the record of Thika Chief Magistrate MCL & E No. 3 of 2019 (formerly Thika ELC Case No. 310 of 2018) Elizabeth Wanjiru Gichuhi Vs Mwihoko Housing Company LTD for inspection by this Honorable Court within seven (7) days from the date hereof.
p. 4Final orders - sending for and inspection of subordinate court record
I therefore find merit in the Notice of Motion application dated 25/02/2025. Thus, it is hereby allowed.
p. 4Allowance of the application under Order 14 Rule 6
Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.
p. 3Limit on use of materials obtained under Order 14 Rule 6
That costs of this application shall be in the cause.
p. 4Costs order

Issues in the judgment

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minor

The judgment cites the costs principle as arising from 'Section 27 (1) of the Civil Procedure Rules Cap. 21' whereas section 27(1) is a provision of the Civil Procedure Act, not the Rules.

minor

The case number of the present suit is not stated anywhere in the ruling.

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, "Kamau v Wahome & 20 others (Environment and Land Case 81 of 2019) [2025] KEELC 6726 (KLR)", Case Analysis (2025). Not stated in the judgment (Thika ELC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6726/eng@2025-10-07

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