Mailua Estates Limited v Miato & 6 others (Environment and Land Case 504 of 2017) [2026] KEELC 2521 (KLR)
The bottom line
#The High Court dismissed a bid to review its earlier decision, confirming that unhappy parties must appeal rather than relitigate through 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 Application has met the threshold for review of the Ruling delivered on 18 December 2024
Key legal issues
#Whether the ruling of 18 December 2024 should be reviewed on the ground that it was rendered without consideration of the Plaintiff's submissions and without addressing the change-of-advocates prayer
The application for review fails; the impugned ruling expressly considered and determined the change-of-advocates issue under Order 9 rule 9, and the Plaintiff's submissions did not address that issue. Non-consideration of late-filed submissions does not establish an error apparent on the face of the record or a breach of the right to a fair hearing.
The court found the Applicant's assertion that the change-of-advocates issue was not addressed to be misleading, quoting the impugned ruling which expressly found non-compliance with Order 9 rule 9 for lack of consent from the former advocate or proper application. The Plaintiff's submissions of 23 November 2024 did not address Order 9 rule 9 compliance. Following Mwera J in Erastus Wade Opande, submissions are not evidence on which a case is decided, so their non-consideration did not vitiate the ruling. No new and important matter was discovered.
The threshold for review under Section 80 of the Civil Procedure Act and Order 45 rule 1
Review is confined to the grounds in Order 45 rule 1: discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason construed in light of the specified grounds. An erroneous decision cannot be corrected through review; the remedy lies in appeal.
The court adopted Mativo J's exposition in Republic vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya, setting out ten principles including that 'any other sufficient reason' must be interpreted in light of the specified grounds, that review must be confined to material available at the time of the initial decision, and that mere discovery of new matter is insufficient unless due diligence could not have produced it earlier. The Respondent's objection that the proper remedy is appeal and that finality of litigation must be preserved was upheld in substance.
Legal principles established
#- A court can review its decision only on the grounds enumerated in Order 45 rule 1 and not otherwise.
- An error apparent on the face of the record must be self-evident and prima facie visible without detailed examination.
- Submissions are not evidence upon which a case is determined.
Court orders
#- 1.The Applicant's Notice of Motion dated 20 April 2025 seeking review of the ruling delivered on 18 December 2024 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
- Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2(2) of the Civil Procedure Rules, 2010
Relief refused
#Review of the ruling and subsequent order made on 18 December 2024 in its entirety
The application did not meet the threshold for review under Section 80 of the Civil Procedure Act and Order 45 rule 1; the impugned ruling had expressly considered the change-of-advocates issue and submissions are not evidence
That the Plaintiff's Application dated 17 December 2022 be allowed as prayed
This was consequential on the review, which failed; the court had already found non-compliance with Order 9 rule 9 in the impugned ruling
Costs
The application is 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.
Accordingly, the application is dismissed with costs to the Respondent.
In the circumstances, I find that the Applicant's Notice of Motion dated 28 April 2025 does not meet the threshold for review.
Submissions are not evidence on which a case is decided.
A Court can review its decision or either the grounds enumerated in Order 45 rule 1 and not otherwise.
I find the Applicant's assertion that the issue of change of advocates was not addressed in the impugned ruling to be misleading.
Issues in the judgment
#The application is described as dated 20 April 2025 in the introduction but referred to as dated 28 April 2025 in the disposition paragraph.
The impugned ruling is said to have been delivered on 18 December 2024, but paragraph 12 records the dismissal of the application dated 17 December 2022 in a ruling delivered on 19 December 2024.
The delivery date is stated as 30 April 2026, while the Replying Affidavit was sworn on 23 October 2025 and the application dated 20 April 2025 - the year 2026 appears inconsistent with the surrounding chronology.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mailua Estates Limited v Miato & 6 others (Environment and Land Case 504 of 2017) [2026] KEELC 2521 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2521/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.