Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Petitioner's notice of motion dated 26th October 2020)· [2021] KEELC 2432 (KLR)

Nancy Wangari Kimani v County Executive Committee Member, Lands Housing, Physical Planning & Urbanization & another [2021] KEELC 2432 (KLR)

Environment and Land Court
14 July 2021
YAY. M. Angima
2,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The court dismissed a request to review its earlier land ruling, confirming that disagreements with a decision belong in an appeal, not a review application.

What this practically means

#

Executive summary

#
The Petitioner applied by notice of motion dated 26th October 2020, under Order 45 of the Civil Procedure Rules, for review of the ruling of Hon. Lady Justice M.C. Oundo delivered on 30th September 2020, citing two alleged errors apparent on the face of the record: that her earlier application dated 23rd October 2019 formed part of a constitutional petition brought under Order 51 and Article 22 of the Constitution so Order 53 did not apply, and that she was not in breach of any physical planning or land use laws and had never been served with an enforcement notice under Section 72 of the Physical and Land Use Planning Act, 2019. The Respondents filed a preliminary objection contending that the Petitioner had already lodged a notice of appeal against the same ruling, so the review application was an abuse of process. The court framed two issues: whether the preliminary objection had merit, and whether the review application met the statutory grounds. On the first, the court found that although the Petitioner had filed a notice of appeal on 30th September 2020 (lodged 2nd October 2020), she withdrew it by notice under Rule 81 of the Court of Appeal Rules filed on 16th November 2020; an appeal once taken ousts review, but the withdrawal pre-empted the objection, which was overruled. On the second, applying Nyamogo & Nyamogo v Kogo and National Bank v Ndungu Njau, the court held that no error apparent on the face of the record was disclosed; the Petitioner was re-agitating the merits and challenging the judge's exposition of the law, which are grounds for appeal, not review. The application was dismissed with no order as to costs.

Key legal issues

#
01

Whether filing and later withdrawing a notice of appeal bars an application for review under Order 45 rule 1

Holding

The preliminary objection fails because the Petitioner withdrew the notice of appeal before the objection could succeed

Reasoning

Order 45 rule 1 permits review only where no appeal has been preferred. The record showed a notice of appeal lodged on 2nd October 2020, but a notice of withdrawal under Rule 81 of the Court of Appeal Rules was filed on 16th November 2020. The court held that although an appeal once taken ousts review, the withdrawal pre-empted the objection.

p. 3
02

Whether the application disclosed an error apparent on the face of the record

Holding

It did not; the grievances were grounds for appeal, not review

Reasoning

Applying Nyamogo & Nyamogo and National Bank Ltd v Ndungu Njau, the court held that an error apparent on the face of the record must be self-evident and not require elaborate argument. The Petitioner was merely seeking to bring forward facts and evidence she thought the court should have considered differently, and questioning the judge's exposition of the law.

p. 3

Legal principles established

#
  • An appeal once taken ousts review, but withdrawal of the notice of appeal pre-empts a preliminary objection premised on the appeal
  • A perceived incorrect exposition of the law or misconstruing a statute cannot be a ground for review

Court orders

#
  1. 1.The Respondents' notice of preliminary objection dated 5th November, 2020 is overruled
  2. 2.The Petitioner's notice of motion dated 26th October, 2020 is dismissed
  3. 3.No order as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 rule 1; Order 51; Order 53 rules 1, 2 and 3
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticles 22, 40, 47
  • Physical and Land Use Planning ActSections 72, 32(d) and 5
  • Fair Administrative Action ActSection 4
  • Court of Appeal RulesRule 81

Cases cited (9)

  • Suchan Investment Ltd – vs – Ministry of National Heritage & Culture and 3 Others
    [2016] eKLR
  • Republic – v – Commissioner of Lands, Kenya Agricultural Research Institute Ex-parte Renege Project Ltd
    (2018) eKLR
  • Nelson Muturi Dumbeyia – vs County Government of Kajiado
    [2020] eKLR
  • Gathoni Park Farm Ltd – v – National Land Commission & 7 Others
    [2020] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • JSK vs VKW
    (2019) eKLR
  • Grace Akinyi – v Gladys Kemunto Obiri & Another
    [2016] eKLR
  • National Bank of Kenya – v – Ndungu Njau
    Civil Appeal No 2111 of 1996; [1997] eKLR
  • Nyamogo & Nyamogo Advocates – v – Moses K. Kogo
    [2001] 1 E.A. 170
Jurisdiction invoked
Order 45 of the Civil Procedure Rules and all other enabling provisions of the law (review jurisdiction under Section 80 of the Civil Procedure Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nancy Wangari Kimani v County Executive Committee Member, Lands Housing, Physical Planning & Urbanization & another [2021] KEELC 2432 (KLR)", Case Analysis (2021). Not stated in the judgment (Petitioner's notice of motion dated 26th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2432/eng@2021-07-14

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