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ELCStruck OutNot stated in the ruling· [2026] KEELC 3448 (KLR)

Muthama v Shadrack (Sued in Her Capacity as the Personal Representative of the Estate of Shedrack Wambua Kivai - Deceased) (Environment and Land Case E086 of 2021) [2026] KEELC 3448 (KLR)

Environment and Land Court
9 June 2026
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out a request to review its own judgment, confirming that review is not a second chance to re-argue a lost case.

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 the plaintiff's notice of motion dated 1 September 2025, brought under Sections 3, 3A and 80 of the Civil Procedure Act, Sections 13(7) and 19(3)(f) of the Environment and Land Court Act and Order 45(1) of the Civil Procedure Rules, seeking review of the judgment of 25 June 2025 and an order compelling the defendant to transfer ten acres from the resultant subdivisions of Title No. Donyo Sabuk/Komarock Block 1/12374 to him. The plaintiff argued that the court had found the defendant held the ten acres in trust for him yet dismissed the suit, and that the court ought to have ordered transfer. The defendant filed a preliminary objection dated 6 February 2026 contending the motion was barred by Section 7 of the Civil Procedure Act (res judicata) and incompetent for want of the threshold under Order 45 Rule 1. Only the plaintiff filed submissions. The court adopted the Mukisa Biscuit test as affirmed by the Supreme Court in Aviation & Allied Workers Union, found the objection raised pure points of law and met the threshold. The res judicata ground failed for want of defendant's submissions, but the Order 45 ground succeeded: the plaintiff had shown no error apparent on the face of the record, no new and important matter, and was merely attempting to re-argue his dismissed suit. Applying Parliamentary Service Commission v Wambora and National Bank of Kenya v Ndungu Njau, the court held it functus officio and that the grounds belong on appeal. The objection was allowed, the motion struck out, with each party bearing their own respective costs.

Key legal issues

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01

Whether the preliminary objection satisfied the Mukisa Biscuit threshold

Holding

The court held that the objection raised pure questions of law, particularly on jurisdiction/res judicata and the competence of the review motion, and met the threshold.

Reasoning

Applying Mukisa Biscuit and the Supreme Court's decision in Aviation & Allied Workers Union, the court asked whether the points of law were clear, whether the facts were settled and required no further ascertainment, and whether the court was being asked to exercise discretion. It concluded that the legality issues concerning its jurisdiction were purely legal matters capable of disposing of the entire application, and that jurisdiction is everything.

p. 2
02

Whether the res judicata ground under Section 7 of the Civil Procedure Act was established

Holding

The res judicata ground failed because the defendant filed no submissions to enable evaluation of that point.

Reasoning

In the absence of submissions from the defendant, the court could not evaluate the relevance of the res judicata point, having not previously considered a similar application in the matter. It therefore agreed with the plaintiff that this aspect of the objection was unfounded and lacked merit.

p. 3
03

Whether the review application met the threshold in Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The application failed; the plaintiff did not demonstrate an error apparent on the face of the record, new and important matter, or any other sufficient ground, and was attempting to re-argue the case.

Reasoning

Guided by Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya and National Bank of Kenya v Ndungu Njau, the court found the plaintiff had not shown an obvious error on the face of the impugned orders or new matter; his ground was merely that the court should not have dismissed the suit. Relying on Parliamentary Service Commission v Wambora, the court held review is not an appeal, found itself functus officio, and held the grounds belong on appeal.

p. 5

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought.
  • A court reviewing its own decision is confined to the grounds in Order 45 Rule 1 and a review is not an opportunity to re-argue the case.
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere preference for a different view by another judge is not a ground for review.

Court orders

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  1. 1.The preliminary objection dated 6 February 2026 is allowed
  2. 2.The notice of motion dated 1 September 2025 is struck out
  3. 3.Each party shall bear their respective costs in relation to the notice of preliminary objection and the notice of motion
Jurisdiction invoked
Sections 3, 3A and 80 of the Civil Procedure Act; Sections 13(7) and 19(3)(f) of the Environment and Land Court Act; Order 45(1)(a) and (b) of the Civil Procedure Rules

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, "Muthama v Shadrack (Sued in Her Capacity as the Personal Representative of the Estate of Shedrack Wambua Kivai - Deceased) (Environment and Land Case E086 of 2021) [2026] KEELC 3448 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3448/eng@2026-06-09

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