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ELCPartially AllowedEnvironment and Land Case 221 of 2014· [2026] KEELC 1005 (KLR)

Mueke v Mwaniki (Environment and Land Case 221 of 2014) [2026] KEELC 1005 (KLR)

Environment and Land Court
24 February 2026
2,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos, delivered by A. Y. Koross J on 24 February 2026, determined the plaintiff's notice of motion dated 15/03/2025, brought under Articles 50(1) and 159(2)(b) and (d) of the Constitution, Section 19(1) of the Environment and Land Court Act, Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The plaintiff, whose case was heard and closed on 23/10/2018 but amended thereafter following the subdivision of the suit property, LR No. Machakos/Mua Hills/601, sought to reopen his case to testify on his amended plaint, to review and refund the adjournment costs imposed on him for the hearing of 26/02/2025, and to bar the defendant from raising further objections. The court distilled three issues. On recall, applying the criteria in Susan Wavinya Mutavi v Isaac Njoroge, it found the subdivision evidence was not reasonably available when the plaintiff testified, that the court had already found the subdivision pendente lite, and that the defendant could not profit from his own illegality; the case was reopened. On review, applying the Supreme Court's principles in Parliamentary Service Commission v Wambora, the court held the plaintiff was merely re-arguing the costs ruling, not demonstrating error, mistake or sufficient cause, declared itself functus officio, and refused that relief. The prayer to bar future objections was refused as inconsistent with the non-derogable right to a fair hearing under Articles 50 and 25(c). The court also struck out both parties' submissions for breaching page-limit directions, citing the Supreme Court in Okoiti. Final orders: the plaintiff's case reopened, costs in the cause, and a hearing date to issue.

Key legal issues

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01

Whether the plaintiff should be recalled to testify on his amended plaint

Holding

Recall allowed; the evidence of the subdivision of the suit property was not reasonably available to him when he testified and was crucial to his case

Reasoning

The court applied the criteria in Susan Wavinya Mutavi v Isaac Njoroge. Having found in its ruling of 30/04/2021 that the subdivision of LR No. Machakos/Mua Hills/601 into Machakos/Mua Hills/1484-1487 was pendente lite, the court held the recall was not intended to fill gaps; the subdivision records were not reasonably available at the time of the plaintiff's testimony, and the defendant cannot benefit from his own illegality. The relief was therefore justified.

p. 3
02

Whether the plaintiff met the threshold for review of the orders on adjournment costs

Holding

No; the relief was unmerited

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) require discovery of new and important matter, an error apparent on the face of the record, mistake or sufficient cause. Applying the Supreme Court's guiding principles in Parliamentary Service Commission v Wambora, the court found the plaintiff was only reiterating why costs should not have been imposed, which is impermissible re-argument in review, and held itself functus officio on that ruling.

p. 5
03

Whether the defendant should be barred from raising objections during the hearing

Holding

No; the prayer was unmerited

Reasoning

The court held the prayer was unusual and encroached on the right to a fair hearing, which is non-derogable under Article 25(c) and guaranteed by Article 50. Citing Muruatetu, Mahamud v Mohamad and Kidero v Waititu, it affirmed that the fair trial guarantee extends to civil proceedings and rests on the natural justice principles of audi alteram partem and nemo judex in causa sua; depriving a litigant of the opportunity to object would undermine these protections.

p. 5
04

Non-compliance with page-limit directions on written submissions

Holding

The submissions were struck out

Reasoning

The court directed the parties to file written submissions with clear page limitations. Counsel for both sides failed to adhere to the directives and filed extensive arguments. Invoking the Supreme Court decision in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning, the court struck out the non-compliant submissions without unnecessary elaboration.

p. 2

Legal principles established

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  • In reopening a case, the court exercises judicious discretion guided by criteria including prejudice to the opposite party, absence of gaps-filling, absence of inordinate unexplained delay, reasonable diligence in obtaining the evidence, its probable important influence on the result, and apparent credibility
  • Review of a discretionary decision is not an appeal and the applicant must show error, mistake or sufficient cause, not re-argue the case
  • The right to a fair trial extends to both criminal and civil proceedings and is non-derogable

Court orders

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  1. 1.Plaintiff's case shall be reopened for him to testify.
  2. 2.Costs shall be in the cause.
  3. 3.A hearing date of the main suit shall be issued.

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(b) and (d)
  • Constitution of KenyaArticle 25(c)
  • Environment and Land Court Act, 2012Section 19(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 45 Rules 1(1), 2 and 5
  • Civil Procedure Rules, 2010Order 18 Rule 10
  • Evidence ActSection 146(4)

Cases cited (6)

  • Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others
    [2023] KESC 69 (KLR)
  • Susan Wavinya Mutavi v Isaac Njoroge & another
    [2020] KEELC 8 (KLR)
  • Parliamentary Service Commission v Wambora & 36 others
    [2018] KESC 74 (KLR)
  • Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)
    [2017] KESC 2 (KLR)
  • Mahamud v Mohamad & 3 others
    [2018] KESC 62 (KLR)
  • Kidero & 4 others v Waititu & 4 others
    [2014] KESC 11 (KLR)
Jurisdiction invoked
Article 50(1) and Article 159(2)(b) and (d) of the Constitution of Kenya; Section 19(1) of the Environment and Land Court Act, 2012; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 45 Rules 2 and 5 of the Civil Procedure Rules, 2010

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, "Mueke v Mwaniki (Environment and Land Case 221 of 2014) [2026] KEELC 1005 (KLR)", Case Analysis (2026). Environment and Land Case 221 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1005/eng@2026-02-24

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