Gallerius Investments Limited v County Government of Kwale & 2 others (Civil Appeal E014 of 2022) [2026] KECA 750 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges can't decide contested applications unheard, setting aside some orders while upholding EACC's caution on the disputed Kwale land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to this Court from procedural directions of the trial court
- 2.Whether this Court has power to interfere with procedural directions and orders of the court below
- 3.Whether the orders and directions complained of were purely procedural and, if not, whether the appeal against them is merited
Key legal issues
#Distinction between purely procedural case-management directions and substantive orders
Directions that summarily dispose of substantive Motions and preliminary objections on points of law are not purely procedural; they amount to substantive orders attracting a right of appeal as decrees or orders under sections 66 and 75 of the Civil Procedure Act.
The court distinguished case-management directions (timelines, filing steps) from orders that conclusively determine rights. Although the learned Judge framed her directions as facilitating expedition under the overriding objective, they in fact disposed of four applications (two substantive) and three preliminary objections without hearing the parties. Such orders had a bearing on the merits and were appealable, some as of right under Order 43.
Right to be heard before adverse interlocutory determinations
The trial judge misdirected herself in determining the appellant's Motions of 26th February 2020 and 6th March 2020 and the related preliminary objections without according counsel an opportunity to be heard, sacrificing the right to be heard on the altar of expedition.
Counsel for the appellant was not afforded oral or written hearing on the preliminary objections before the adverse directions were issued. Relying on Leiyagu and Kanyiita Nderitu, the court held the right to be heard is fundamental and permeates the justice system, and expedition under Article 159(2)(d) cannot justify determining contested applications unheard.
Appellate restraint against discretionary decisions
An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
The court restated the classic test from United India Insurance and Mbogo v Shah, but found the restraint doctrine inapplicable to the directions that disposed of contested applications without hearing, since the failure was a misdirection in law and a denial of natural justice rather than a mere difference in the weight given to factors.
EACC capacity to sue and to lodge a caution
The EACC had capacity to institute proceedings for recovery of public property and its caution, lodged pursuant to a court order to preserve the suit property, caused no prejudice to the appellant; the dismissal of the appellant's Motion of 3rd February 2021 was upheld.
The court noted the appellant had filed written submissions on the Motion of 3rd February 2021 and the related preliminary objection on locus standi, so it was heard. The EACC's mandate under section 11(1)(j) of the Ethics and Anti-Corruption Commission Act, 2011, and the preservative purpose of the caution, meant the trial judge correctly dismissed the application.
Legal principles established
#- Procedural directions and instructions are distinct from decrees and orders touching on the merits; where directions summarily dispose of substantive Motions and preliminary objections without hearing the parties, they amount to substantive orders against which an appeal lies.
- There is no right of appeal against a purely procedural direction or interlocutory order that does not conclusively determine the rights of the parties.
- A trial court must accord a party an opportunity to ventilate its position before issuing directions or orders that effectively dispose of its applications and preliminary objections on their merits.
Court orders
#- 1.The directions and orders dismissing the appellant's Notices of Motion dated 26th February 2020 and 6th March 2020, as well as the preliminary objections thereto dated 17th March 2020 and 16th March 2020, are set aside
- 2.The interlocutory applications and preliminary objections specified in (a) be remitted to the ELC at Kwale for hearing and determination on their merits
- 3.The directions and orders dismissing the appellant's Notice of Motion dated 3rd February 2021 and the related preliminary objection dated 5th July 2021 are upheld
- 4.The directions and orders dismissing the appellant's Notice of Motion dated 14th October 2021 are upheld
- 5.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Kwale
- Kwale ELC Case No. 7 of 2021 (formerly Mombasa ELC Case No. 185 of 2015)
- Jurisdiction invoked
- Sections 66, 75 and 76(1) of the Civil Procedure Act, Cap. 21 - appeal from orders of the High Court (ELC) to the Court of Appeal
Relief refused
#Appeal against the dismissal of the appellant's Notice of Motion dated 3rd February 2021 seeking removal of the caution registered by the 2nd respondent
The appellant had filed written submissions and been heard; the caution was lodged pursuant to a court order to preserve the suit property and caused no prejudice; EACC had capacity to sue under section 11(1)(j) of the Ethics and Anti-Corruption Commission Act, 2011
Appeal against the dismissal of the appellant's Notice of Motion dated 14th October 2021 seeking transfer of the suit back to Mombasa
The direction was issued under Order 47 rule 6 (place of trial), an order from which no appeal lies as of right, and the appellant failed to obtain the ELC's leave to appeal
Costs
Each party to bear their own costs of the appeal - 'the parties do bear their costs of the appeal'
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.
the learned Judge having summarily determined the applications and preliminary objections on their merits, the impugned directions cannot properly be regarded as purely procedural or discretionary. To the contrary, they amounted to substantive orders.
In principle, there is no right of appeal against a procedural direction or interlocutory order that does not conclusively determine the rights of the parties.
The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law.
the directions and orders dismissing the appellant's Notices of Motion dated 26th February 2020 and 6th March 2020, as well as the preliminary objections thereto dated 17th March 2020 and 16th March 2020 respectively, are hereby set aside
the interlocutory applications and preliminary objections specified in (a) above be remitted to the ELC at Kwale for hearing and determination on their merits
that the parties do bear their costs of the appeal.
Issues in the judgment
#The coram block spells 'CONLUSIONS' (apparently 'CONCLUSIONS') and bears a certification by a Deputy Registrar, suggesting the judgment as supplied is a certified copy rather than the officially sealed original
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gallerius Investments Limited v County Government of Kwale & 2 others (Civil Appeal E014 of 2022) [2026] KECA 750 (KLR)", Case Analysis (2026). ELC Case No. 7 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/750/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.