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ELCDismissedKajiado ELC Case No. E043 of 2022

Milele Homes Limited v Mambomoto Homes Limited (Environment and Land Appeal 6 of 2023) [2025] KEELC 6955 (KLR)

Environment and Land Court
9 October 2025
2,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you cannot appeal disguised as review—disagreeing with a ruling isn't enough to reopen it.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kajiado (L. Komingoi, J) against the trial magistrate's Ruling of 31st August 2022 in Kajiado CMC ELC Case No. E043 of 2022, which declined to review her Ruling of 6th July 2022 dismissing the Appellant's application dated 7th July 2022. The underlying dispute arose from a lease of Kajiado/Kaputiei North/1007; the Respondent alleged illegal eviction on 21st April 2022 and carting away of goods and fixtures worth Kshs. 1,300,000, and obtained interlocutory orders including a temporary injunction and an order compelling the Appellant to release the goods. The Appellant sought review on the ground that the interlocutory orders disposed of the entire suit without a hearing. The Appellant's six grounds of appeal centred on whether the Respondent's case was determined at an interlocutory stage, whether the Appellant was condemned unheard, and whether the review application was wrongly dismissed. The court reiterated the duty of a first appellate court to re-evaluate evidence, defined review under Order 45 as confined to errors apparent on the face of the record, and held that a re-appraisal of evidence to reach a different determination is appellate, not reviewable, territory. It found the trial magistrate properly exercised her discretion in granting a mandatory injunction since the lease had not expired and termination notice was unclear. The appeal was dismissed with costs to the Respondent.

Questions the Court framed

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

  1. 1.Whether the Learned Trial Magistrate erred in law and in fact by failing to find that the Respondent's case was determined at an interlocutory stage leaving nothing for Trial by her ruling by allowing the injunction application
  2. 2.Whether the Learned Trial Magistrate erred in law and in fact by failing to find that the Appellant was condemned unheard and the Review Application was meritorious
  3. 3.Whether the Appeal is merited
  4. 4.Who should bear costs of this Appeal?

Key legal issues

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01

Scope of review under Order 45 - error apparent on the face of the record

Holding

An error apparent is one that is self-evident and glaring, requiring no elaborate argument; disagreement with the court's factual or legal conclusions is not a ground for review

Reasoning

The court applied Order 45 and Court of Appeal authority (Multi purpose Co-operative Society Ltd v Serser; National Bank of Kenya v Ndungu Njau) holding that review grounds are narrower than appeal grounds, and that an erroneous conclusion of law or misconstruction of a statute cannot found review. The Appellant's grievance invited the court to re-evaluate evidence, an appellate function, which does not constitute error apparent.

p. 6
02

Whether the trial magistrate erred in granting interlocutory mandatory injunction releasing goods before full hearing

Holding

The trial court properly exercised its discretion: the lease had not expired and it was unclear if the statutory notice to terminate had been given, making it a clear case for a mandatory injunction

Reasoning

On first appeal, the court re-evaluated the record and held the trial magistrate took time to evaluate the evidence presented by both parties before ordering return of the seized goods and fixtures. The mandatory orders were justified because the lease had not expired and termination notice was unclear.

p. 6
03

Whether the Appellant was condemned unheard

Holding

The Appellant was accorded a fair hearing; the trial court evaluated the evidence of both parties before making its orders

Reasoning

The court found no merit in the complaint of being condemned unheard, noting the trial court evaluated evidence presented by both parties before issuing the orders of 6th July 2022, and that the review application received full consideration before dismissal.

p. 6

Legal principles established

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  • A re-appraisal of evidence to reach a different determination does not qualify as an error apparent on the face of the record; that is an appellate exercise
  • A mandatory injunction may properly be granted at an interlocutory stage where the lease had not expired and termination notice was unclear

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Kajiado (ELC)
E043 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Civil Procedure Act and Rules

Relief refused

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Setting aside of the Ruling dated 31st August 2022 and allowal of the application seeking setting aside of the orders issued on 6th July 2022

The Court found the trial magistrate properly exercised her discretion in ordering return of the seized goods and that no error apparent on the face of the record warranted review

p. 6

Costs

Appeal dismissed with costs to the Respondent

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.

In conclusion, the Appeal is found to be without merit and the same is dismissed with costs to the Respondent.
p. 6Disposition - appeal dismissed with costs
A re-appraisal of the evidence to reach a difierent determination does not qualify as an error apparent because that would be an exercise for an Appellate jurisdiction.
p. 6Limits of review under Order 45
In my view this was a clear case where mandatory injunction could be granted.
p. 6Mandatory injunction at interlocutory stage
This being a first Appeal this Court has a duty to re-analyse the facts and evidence tendered at the Lower Court and come up with its own determination.
p. 4Duty of a first appellate court

Issues in the judgment

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minor

Ruling date inconsistency: the review application is referred to as dated 7th July 2022 but the trial magistrate's dismissal quotes it as dated 8th July 2022

minor

Ruling dated 6th July 2022 but orders issued on 15th July 2022

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, "Milele Homes Limited v Mambomoto Homes Limited (Environment and Land Appeal 6 of 2023) [2025] KEELC 6955 (KLR)", Case Analysis (2025). Kajiado ELC Case No. E043 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6955/eng@2025-10-09

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