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ELCPartially AllowedELC Review Application dated 10th October 2025 (arising from trespass suit consolidated with Civil Case No. 358 of 1998 – Teita Sisal Estate Limited v Mnjala Mwaluma)

Teita Estates Ltd v Mwaluma & 10 others (Environment and Land Case 103 of 2007) [2026] KEELC 4317 (KLR)

Environment and Land Court of Kenya
10 July 2026
6,315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The court lifted an inhibition on Teita Sisal Estate's land but upheld the order that the company pay the defendants' costs after withdrawing its long-running trespass suit.

What this practically means

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Executive summary

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The applicant, Teita Sisal Estate Limited (plaintiff), applied by notice of motion dated 10th October 2025 under Order 45 of the Civil Procedure Rules seeking review, variation and setting aside of orders made on 29th September 2025 by which its suit was withdrawn with costs to the defendants, and discharge of an inhibition order issued on 12th August 2025 by Justice Stephen Kibunja over portions of L.R. No. 3880/5. The plaintiff attributed the absence of its counsel, Mr. Victor Mungai, on 29th September 2025 to illness and an inadvertent mis-diarization of the hearing date, contending that its right to be heard under Article 50 was breached, that counsel's mistake should not be visited on an innocent litigant, and that awarding costs to defendants who had trespassed and destroyed crops rewarded illegal conduct. The respondents opposed, arguing that a withdrawn suit is terminated forever, that the court was functus officio, that the Voi ELC Petition No. E004 of 2024 relied on was never consolidated with this suit and is under appeal, and that under Order 25 Rule 3 a defendant who participated in the proceedings is entitled to costs. The court held that it retained jurisdiction under Section 80 of the Civil Procedure Act and Order 45 notwithstanding the withdrawal. However, it found no sufficient reason to interfere with the costs order, holding that the defendants, having defended the suit since 2007 and incurred costs, were entitled to costs of the withdrawn suit. The inhibition order, being interlocutory, was discharged as it served no purpose after withdrawal. The application was allowed only in respect of the inhibition; the costs review was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court has jurisdiction to review its orders of 29th September 2025 notwithstanding the withdrawal of the suit
  2. 2.Whether sufficient grounds exist to warrant review and/or setting aside of the order of 29th September 2025 awarding costs to the Defendants
  3. 3.Whether the inhibition orders issued on 12th August 2025 ought to be discharged
  4. 4.Whether the mistake of counsel should be visited upon the Applicant

Key legal issues

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01

Jurisdiction to review orders after withdrawal of the suit

Holding

The court retained jurisdiction to review its own orders notwithstanding the withdrawal of the suit; the functus officio objection failed.

Reasoning

Section 80 of the Civil Procedure Act read with Order 45 of the Civil Procedure Rules confers power on the court to review its decrees and orders on discovery of new matter, error apparent on the face of the record, or any other sufficient reason. The respondents' contention that withdrawal divested the court of jurisdiction was rejected as legally untenable.

p. 4
02

Whether the order of costs of 29th September 2025 should be reviewed

Holding

The application for review of the costs order was refused because no sufficient reason was shown to deny the defendants costs of the withdrawn suit.

Reasoning

The applicant only sought to vary the costs order, not the withdrawal itself. The defendants had entered appearance, filed pleadings, attended hearings including cross-examination of the plaintiff's witness, and incurred costs defending the suit since 2007. Under Order 25 Rule 3 and Section 27 of the Civil Procedure Act, costs follow the event and a withdrawing plaintiff is liable for costs.

p. 11
03

Whether the inhibition order of 12th August 2025 should be discharged

Holding

The inhibition order was discharged and/or vacated as it was interlocutory and served no lawful purpose after the suit's withdrawal.

Reasoning

The inhibition orders were interlocutory in nature, issued pending determination of the suit. Once the suit was withdrawn and no substantive claim remained for determination, the continued subsistence of the inhibition unjustly fettered the applicant's proprietary rights protected under Article 40 of the Constitution.

p. 5
04

Mistake of counsel and natural justice

Holding

Although counsel's absence was attributed to illness and mis-diarization, the court held this did not constitute sufficient reason to deny costs.

Reasoning

The applicant invoked Article 50 of the Constitution and the principle that a litigant should not suffer for his advocate's oversight, relying on CFC Stanbic Limited v John Maina Githaiga. However, the court found that the defendants were nonetheless entitled to costs of the withdrawn suit given their participation and the expense incurred, and no error apparent on the face of the record justified review.

p. 5

Legal principles established

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  • A court may review its own orders under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules on discovery of new matter, error apparent on the face of the record, or any other sufficient reason
  • Denial of procedural fairness through no fault of a party is a ground on which a court may set aside or vary its own order
  • A defendant who has taken steps to defend a suit that is withdrawn is entitled to costs under Order 25 Rule 3 of the Civil Procedure Rules
  • Interlocutory orders such as inhibition cease to serve a lawful purpose once the suit in which they issued has been withdrawn

Court orders

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  1. 1.The order of inhibition issued on 12th August 2025 by Honourable Justice Stephen Kibunja against the Plaintiff's portions of land emanating from the subdivision of L.R. Number 3880/5 is discharged and/or vacated
  2. 2.The application for variation of the order for costs is dismissed with costs

The bench

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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 of the Civil Procedure Rules, 2010

Relief refused

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Review/variation of the order of costs awarded to the Defendants on 29th September 2025

No sufficient reason shown; the defendants were entitled to costs of the withdrawn suit after participating in the proceedings

p. 11

Costs

The application for the variation of the order for costs was dismissed with costs to the Defendants/Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application is allowed only to the extent that the order of inhibition issued on 12th August 2025 by Honourable Justice Stephen Kibunja against the Plaintifis portions of land emanating from the subdivision of L.R. Number 3880/5 be and is hereby discharged and or vacated, however the application for the variation of the order for costs is dismissed with costs.
p. 11Final orders/disposition
Turning to this case, the applicant does not intend to review the withdrawal of the suit, he is only interested in the order of costs. No suficient reason has been shown why he should not pay costs.
p. 11Refusal of review of costs order
The defendant was entitled to costs of the withdrawn suit. The upshot of the above is that there are no grounds for review.
p. 11Entitlement to costs on withdrawal
The expression "any other suficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
p. 10Interpretation of review grounds
It's a widely accepted principle of law that a litigant should not sufier because of his advocate’s oversight.
p. 5Mistake of counsel (cited authority)

Issues in the judgment

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minor

The judgment spells the 1st Defendant's name inconsistently ('Mnanjala Mwaluma' and 'Mnjala Mwaluma')

minor

The judgment refers to the inhibition order as issued on '12th August 2025' in the application but '1 August 2025' in the respondent's pleadings

minor

The judgment's operative paragraph appears at paragraph 60 without a conventional 'IT IS ORDERED' or 'DISPOSITION' heading, and the document ends with an electronic signature block dated 2026-07-10

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, "Teita Estates Ltd v Mwaluma & 10 others (Environment and Land Case 103 of 2007) [2026] KEELC 4317 (KLR)", Case Analysis (2026). ELC Review Application dated 10th October 2025 (arising from trespass suit consolidated with Civil Case No. 358 of 1998 – Teita Sisal Estate Limited v Mnjala Mwaluma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4317/eng@2026-07-10

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