Mama Millers Limited v Sunrise Synthetics Limited [2021] KEELC 3048 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a delayed review application, confirming that review is no substitute for appealing a ruling you dislike.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter as a ground for review
No new or important matter or evidence was discovered that could not have been placed before the Court when the 9th August 2018 application was heard
Order 45 Rule 1 permits review upon discovery of new and important matter or evidence not previously producible with due diligence. The Court had already considered the application and expressly directed that the Preliminary Objection be incorporated into the main suit; the applicant identified no new evidence justifying reconsideration of that decision.
Error apparent on the face of the record
The applicant failed to pinpoint any error apparent on the face of the record
Following Nyamogo & Nyamogo v Kogo, an error apparent on the face of the record must be one where there could reasonably be no two opinions; a mere erroneous decision or a possible but different view is not a ground for review but potentially for appeal. The applicant made no specific identification of any such error in the Ruling of 19th December 2018.
Sufficient reason and undue delay
No sufficient reason was advanced and the delay of over one year, unexplained, was unreasonable
The Ruling was delivered on 19th December 2018 and the application filed on 25th June 2020, over a year later. The applicant claimed only to have obtained the Ruling on 2nd June 2020, giving no satisfactory explanation. Discretion must be exercised judiciously, and an applicant for review must act without undue delay.
Legal principles established
#- A party dissatisfied with an interlocutory ruling should appeal rather than seek review, as a review seeking a prayer already disallowed amounts to the court sitting on its own appeal
- Unexplained delay in filing an application for review renders the delay unreasonable and justifies refusal of review
Court orders
#- 1.The Defendant/Applicant's Notice of Motion application dated 25th June 2020 seeking review is dismissed entirely
- 2.Costs of the application awarded to the Plaintiff/Respondent
- 3.The matter to be set down for hearing expeditiously and determined on merit, at which stage the Defendant's Preliminary Objection will be considered
- Jurisdiction invoked
- Sections 80, 63, 1, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mama Millers Limited v Sunrise Synthetics Limited [2021] KEELC 3048 (KLR)", Case Analysis (2021). Not stated in the judgment (referenced applications dated 9th August 2018 and 25th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3048/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.