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ELCDismissedNot stated in the judgment

Ayora v Odhiambo & another (Enviromental and Land Originating Summons E012 of 2023) [2025] KEELC 7737 (KLR)

Environment and Land Court
11 November 2025
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff/applicant moved the court by notice of motion dated 9th June 2025 seeking review, setting aside or variation of an order made on 24th April 2025 in which the court sustained an objection and expunged his reply to the 1st defendant/respondent's amended replying affidavit and reply to her counterclaim. He also sought to have those pleadings deemed duly filed and served. He explained that his current advocate, appointed on 19th February 2025, found that the former advocate had prepared the pleadings but failed to file and serve them, and that their exclusion would gravely prejudice his defence to the counterclaim. The application was expressed to be brought under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act (misdescribed in the motion as Rules), Order 45 Rules 1 and 2, Order 50 Rule 1 and Articles 48, 50 and 159 of the Constitution. The 1st defendant/respondent opposed, contending that counsel had had ample time since 19th February 2025, that the pleadings were served only at 9.43 am on the hearing date, that the issue was res judicata, and that no new matter, error or sufficient cause had been shown. The sole issue was whether the court should review its order of 24th April 2025. Relying on Section 80 of the Civil Procedure Act and Order 45 Rule 1, and applying Otieno, Ragot & Company Advocates v National Bank of Kenya Limited, the court held that no sufficient reason had been demonstrated: counsel had sufficient time to appraise himself of pending issues, filing the pleadings on the hearing date was reckless, and reliance on the former counsel's supposed mistake was improper absent proof. The notice of motion was dismissed with costs 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 this court should review its orders made on 24th April, 2025 expunging the plaintiff/applicant's reply to the amended replying affidavit and reply to counterclaim

Key legal issues

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Whether the plaintiff/applicant demonstrated sufficient cause for review of the order of 24th April 2025 expunging his reply and reply to counterclaim

Holding

No sufficient reason was shown; the mistake was that of counsel who had ample time to file the pleadings, and reliance on a former counsel's supposed mistake was improper where there was no record such pleadings had been prepared

Reasoning

The court set out the grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay. Counsel had been given time from 19th January 2025 to familiarise himself with the case before the April 2025 hearing. Filing the pleadings on the hearing date and attributing the omission to the former advocate was found reckless and unproved. The discretion to review was therefore not engaged.

p. 5

Legal principles established

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  • Review under Section 80 of the Civil Procedure Act and Order 45 requires discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and the application must be made without unreasonable delay
  • The court's discretion to review its own orders is exercised only where sufficient reason is demonstrated

Court orders

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  1. 1.The notice of motion dated 9th June, 2025 is dismissed
  2. 2.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 Rules 1 and 2 and Order 50 Rule 1 of the Civil Procedure Rules; Articles 48, 50 and 159 of the Constitution

Relief refused

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Review, setting aside and/or variation of the order of 24th April 2025 sustaining the objection to the adoption and production of the applicant's response and defence to the counterclaim

No sufficient reason was shown; counsel had ample time to prepare and the alleged mistake of former counsel was not proved

p. 5

Deeming the applicant's response and defence to the counterclaim as duly filed, served and properly on record

It followed from dismissal of the review that the expunged pleadings would not be reinstated

p. 5

Allowing the adoption, production and reliance on the applicant's response and defence to the counterclaim

Forming part of the dismissed notice of motion

p. 5

Costs

Costs in the cause

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.

I find no suficient reason to exercise discretion and review the orders made on 24th April, 2025. The notice of motion dated 9th June, 2025 lacks merit and it is hereby dismissed. Costs in the cause.
p. 5Final orders - dismissal of review application
The main grounds for review are therefore; discovery of new and important matter or evidence, mistake or error apparent on the face of the record; or for any other suficient reason and most importantly, the application has to be made without unreasonable delay.
p. 4Grounds and timing of review (quoting Otieno, Ragot & Company Advocates v National Bank of Kenya Limited)
It is also improper for the plaintifi/applicant to continue to rely on the supposed mistake of a former counsel yet there is no record that the former counsel had prepared the same pleadings and failed to file and serve the same.
p. 5Mistake of counsel as sufficient cause for review

Issues in the judgment

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minor

The motion is stated to be brought under 'Sections 1A, 1B, 3A and 80 of the Civil Procedure Rules' although Sections 1A, 1B, 3A and 80 belong to the Civil Procedure Act, and the court itself later refers to 'Section 80 of the Civil Procedure Act'

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, "Ayora v Odhiambo & another (Enviromental and Land Originating Summons E012 of 2023) [2025] KEELC 7737 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7737/eng@2025-11-11

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