Malinda v Muutu; King’oo (Interested Party) (Environment and Land Case E041 of 2021) [2025] KEELC 8430 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that citing the wrong application in a judgment is an appeal issue, not grounds for review.
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 Applicant has met the threshold for review on account of error apparent on the face of the record
Key legal issues
#Whether the reference by the judge to a wrong application in her ruling constitutes an error apparent on the face of the record justifying review
It does not; the findings in the ruling addressed the main contention in the matter and any perceived error is a matter for appeal
The court found that although the ruling of 18th December, 2024 referred to the application dated 7th September, 2023 rather than the amended application of 12th July, 2024, the findings were on the substance of the matter before the court. An incorrect reference does not meet the self-evident error threshold for review; a party who considers a ruling erroneous must pursue an appeal. Review cannot be used as a second bite at the cherry.
Whether alleged procedural irregularities in the withdrawal of the suit (in the Applicant's absence) can ground a review
No; such complaints are grounds of appeal and cannot be brought by way of review
The Applicant contended it had no notice of the mention of 6th October, 2022 at which the suit was withdrawn. The court held that an attack on the ruling of 18th December, 2024, including on the withdrawal of the suit, must be directed to the proper forum on appeal. A judge of the ELC cannot sit on appeal from a decision of a fellow judge of the same court, and the earlier ruling had already noted the appeal avenue.
Legal principles established
#- A complaint that the court considered a wrong application or failed to consider submissions is not a ground for review but a ground for appeal
- A trial court cannot sit on appeal from a decision of a fellow judge of concurrent jurisdiction; the remedy is appeal
Court orders
#- 1.The Applicant's notice of motion dated 15th May, 2025 seeking review is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction under Order 45 of the Civil Procedure Rules (error apparent on the face of the record) - not expressly cited in the ruling
Relief refused
#Review and vacation of the ruling and orders of 18th December, 2024 and issuance of a fresh ruling
The alleged error of the judge referring to a wrong application does not amount to an error apparent on the face of the record; grievances against the ruling are matters for appeal, not review
Costs
Application 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.
Though the ruling referred to a wrong application, the findings were on what is the main contention in this matter. If the Applicant considers the ruling as erroneous, then that is not a ground for review. It may be a good ground for appeal.
This should have been directed to the proper court on appeal as this court cannot sit on appeal arising from a decision of a fellow judge.
It is clear that the Applicant is attacking the ruling of 18th December, 2024. This is not the forum for such an attack. I therefore find that the Applicant's application is devoid of merit. The same is dismissed with costs to the Respondent.
Issues in the judgment
#The ruling repeatedly misstates the date of the amended application as 7th September, 2024 when the correct date is 7th September, 2023
Respondent's submissions are dated 8th September, 2024 which post-dates the ruling under review and the filed submissions date; marked (sic) in the judgment
Paragraph 24 contains a typographical error rendering the date as '11th July, 20-22'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malinda v Muutu; King’oo (Interested Party) (Environment and Land Case E041 of 2021) [2025] KEELC 8430 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8430/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.