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ELCDismissedPetition dated 16th December 2020; Application dated 7th October 2021· [2021] KEELC 51 (KLR)

John Ngimor & 554 others v Northern Rangelands Trust & 3 others [2021] KEELC 51 (KLR)

Environment and Land Court
18 November 2021
4,079 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to widen a conservation order, confirming that review only fixes obvious errors, not disagreements with a ruling.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Environment and Land Court, empaneled under Article 165(4) of the Constitution, on the Applicants/Petitioners' application dated 7th October 2021 seeking review of the court's ruling of 25th March 2021. In that earlier ruling the court had issued conservatory orders restraining the Respondents, under a December 2019 Memorandum of Understanding concerning conservation and natural resources in West Pokot County, from further mapping, surveying or delineation of community land, importation of wildlife, or eviction of community members in six wards. The Applicants sought amendment of the order to add the words 'and any other activity under the MOU', alleging an error apparent on the face of the record. The Respondents opposed, arguing the orders were deliberately specific, the motion was incompetent because it should have been brought under Rule 25 of the Mutunga Rules, the court was functus officio, and there was inordinate delay of about seven months. The court, in a unanimous judgment, held that Section 80 of the Civil Procedure Act and Order 45 permit review only for new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The alleged omission was not self-evident; the earlier ruling had consciously balanced interests and permitted benevolent activities. The complaint amounted to alleging a wrong exercise of discretion, which is a ground for appeal, not review. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the omission of the words 'and any other activity under the MOU' from the conservatory order constituted an error apparent on the face of the record justifying review

Holding

No. The conservatory orders were deliberately crafted and specific; the alleged error was not self-evident and its correction would alter the substance of the ruling.

Reasoning

The court revisited its ruling and found it had consciously struck a balance and asserted proportionality, deliberately permitting benevolent activities under the MOU while injuncting mapping, surveying, delineation, evictions and wildlife importation. The applicants' complaint was in substance that the court exercised its discretion wrongly, which requires elaborate argument and is a matter for appeal, not review under Order 45.

p. 5
02

Whether the court had jurisdiction to review and substantially vary its ruling under the slip rule

Holding

No. The extent of the slip rule power is limited to correcting obvious errors incapable of generating controversy; it cannot be used to re-open matters already canvassed.

Reasoning

The Respondents argued the motion sought to substantially vary the ruling on matters already decided, on which the court was functus officio. Constitutional petitions are governed by the Mutunga Rules and any variation of conservatory orders should have been sought under Rule 25. The court agreed the alleged error was a fine point of interpretation rather than a clerical mistake.

p. 3

Legal principles established

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  • A review may only be granted to correct an error or omission that is self-evident on the face of the record; an error requiring elaborate argument or one where the court exercised its discretion wrongly is a ground for appeal, not review
  • Where the view adopted by the court in the original record is a possible one, it cannot be an error and is no ground for review, though it may be a ground for appeal
  • An application for review must be made without unreasonable delay

Court orders

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  1. 1.The application dated 7th October 2021 is dismissed with costs to the Respondents
Jurisdiction invoked
Article 165(3)(b) and (d) and Article 165(4) of the Constitution of Kenya 2010; Section 80 of the Civil Procedure Act and Order 45 Rule 2 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, "John Ngimor & 554 others v Northern Rangelands Trust & 3 others [2021] KEELC 51 (KLR)", Case Analysis (2021). Petition dated 16th December 2020; Application dated 7th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/51/eng@2021-11-18

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