Mutua v Isingi & another (Sued as the legal representatives of the Estate of Kamala Isingi - Deceased) (Environment and Land Case Civil Suit 201 of 2014) [2026] KEELC 2622 (KLR)
The bottom line
#The Environment and Land Court at Machakos dismissed a landowner's late attempt to reopen survey orders, confirming that review cannot be used to re-argue a decided case.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased defendant met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the CPR
The application failed: it was filed nine months after the order with no explanation (unreasonable delay), and sought to re-argue matters already decided
Order 45 Rule 1(1) requires an applicant to show discovery of new and important matter, mistake or sufficient cause, and to apply without unreasonable delay. The motion was lodged nine months after the 28 April 2025 order with no explanation for the delay. The grounds raised were merely a re-litigation of the defendant's earlier request for a surveyor's report, which the court had already declined; review is not an avenue for re-arguing a case.
Whether the court was functus officio
Yes - having made its orders of 28 April 2025, the court became functus officio and could not revisit them on review
The court had, on 28 April 2025, declined the defendant's request to file a surveyor's report sought two years after closure of the plaintiff's case. Re-seeking the same relief through review was an attempt to re-argue the case, which review does not permit. Following the Supreme Court's guidance in Parliamentary Service Commission v. Wambora, the court held that the proper remedy was appeal, and that it was functus officio regarding the orders sought to be reviewed.
Legal principles established
#- Review of a discretionary decision is not a right but an equitable remedy requiring a basis to be laid by the applicant
- An application for review is not an appeal or a chance for the applicant to re-argue his case
- Applications for review must be filed without unreasonable delay
- Where a court has made orders and the complaint is about their correctness, the remedy is appeal, not review
Court orders
#- 1.The application dated 27 January 2026 is dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act (Cap. 21); Order 45 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Isingi & another (Sued as the legal representatives of the Estate of Kamala Isingi - Deceased) (Environment and Land Case Civil Suit 201 of 2014) [2026] KEELC 2622 (KLR)", Case Analysis (2026). Notice of motion dated 27 January 2026 (in the principal suit over Plot No. 95 Makutano Market / Land Parcel No. Mwala/Mango/1232). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2622/eng@2026-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.