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ELCDismissedNot stated in the judgment (Environment and Land Court, Machakos; arising from Kangundo ELC Case No. 36 of 2029, formerly Civil Case No. 117 of 2018)· [2026] KEELC 2003 (KLR)

Mbwika v Kivuva (Environment and Land Appeal 34 of 2019) [2026] KEELC 2003 (KLR)

Environment and Land Court
14 April 2026
AKA. Y. Koross
1,350 words in judgment
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The bottom line

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A Kenyan court refused to reopen a case about costs, confirming that losing parties must appeal rather than ask the same judge to reconsider.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) determines a notice of motion dated 16 June 2025 by the respondent in a matter originating from an appeal concerning a contempt ruling of the Kangundo Chief Magistrate's Court. By the motion, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010, the respondent sought review of the judgment dated 26 October 2022 on the issue of costs, and, in the alternative, a stay of execution of costs pending the hearing of Kangundo ELC Case No. 36 of 2029 (formerly Civil Case No. 117 of 2018) and orders for no payment of costs to the appellant until he complied with injunction orders issued in the lower court on 19 June 2019 restraining dealings with parcel Mwala/Kibau/170. The appellant opposed, contending the application sought to make the court act as an appellate court over its own decision. Framing two issues - whether the threshold for review was met and whether the court was functus officio - the court applied Section 80 of the Civil Procedure Act, Order 45 Rule 1(1) and the Supreme Court's guiding principles in Parliamentary Service Commission v. Wambora. It held that the respondent had shown no error apparent on the face of the record, mistake or sufficient cause, and was impermissibly seeking to re-argue the case; that the court was functus officio; and that the grounds were matters for appeal. The motion was dismissed with costs to the appellant and the file marked as closed, with liberty to the appellant.

Key legal issues

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01

Threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) CPR

Holding

The respondent failed to demonstrate discovery of new and important matter, mistake, error apparent on the face of the record or any other sufficient cause; the application is an attempt to re-argue the case

Reasoning

The court set out the statutory criteria in Order 45 Rule 1(1) and the guiding principles in Parliamentary Service Commission v. Wambora, holding that review is not a right but an equitable remedy requiring a basis to be laid. The respondent merely reiterated reasons why costs should not have been imposed, which is impermissible in review proceedings and more appropriate for an appeal.

p. 3
02

Functus officio

Holding

Having delivered final judgment, the court is functus officio and cannot grant the alternative post-judgment reliefs sought

Reasoning

The court reasoned that after the judgment of 26 October 2022 it had spent its authority over the matter. The grounds raised were not suitable for review but for an appeal, and none of the alternative prayers (stay of execution of costs or conditional non-payment of costs) was available post-judgment.

p. 3

Legal principles established

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  • Review is an equitable remedy, not a right, and cannot be used as a vehicle to re-argue a case; the applicant must show error, mistake or sufficient cause under Order 45 Rule 1(1)
  • After delivery of final judgment the court becomes functus officio and alternative post-judgment reliefs are unavailable

Court orders

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  1. 1.The notice of motion dated 16 June 2025 is hereby dismissed with costs to the appellant
  2. 2.This file is hereby effectively marked as closed
  3. 3.Liberty applies to the appellant

Authorities

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Legislation

  • Constitution of KenyaGeneral (invoked in the motion)
  • Civil Procedure ActSections 1A, 1B, 3A and 80
  • Civil Procedure Rules, 2010Order 45, Rule 1(1)

Cases cited (1)

  • Parliamentary Service Commission v. Wambora & 36 others
    [2018] KESC 74 (KLR)
On appeal from
Kangundo Chief Magistrate's Court
ELC Case No. 36 of 2029 (formerly Civil Case No. 117 of 2018)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A 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, "Mbwika v Kivuva (Environment and Land Appeal 34 of 2019) [2026] KEELC 2003 (KLR)", Case Analysis (2026). Not stated in the judgment (Environment and Land Court, Machakos; arising from Kangundo ELC Case No. 36 of 2029, formerly Civil Case No. 117 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2003/eng@2026-04-14

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