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ELCDismissedNot stated in the judgment (referenced applications dated 9th August 2018 and 25th June 2020)· [2021] KEELC 3048 (KLR)

Mama Millers Limited v Sunrise Synthetics Limited [2021] KEELC 3048 (KLR)

Environment and Land Court
3 June 2021
2,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendant, Jayantilal Kachra Shah, filed a Notice of Motion dated 25th June 2020 under Sections 80, 63, 1, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules seeking review of a Ruling delivered on 19th December 2018. That Ruling had placed the Defendant's Preliminary Objection (based on the Limitation of Actions Act) in abeyance, directed its incorporation into the main suit, and granted the Plaintiff's prayers for injunction and status quo, including leave to deposit money in court, without an inter-parties hearing. The Defendant asserted he only obtained the Ruling on 2nd June 2020 and alleged errors on the face of the record. The Plaintiff opposed, contending no grounds for review existed, that the remedy was appeal, and that the application was inordinately delayed. The Plaintiff also maintained his Supplementary Affidavit was filed within leave granted on 29th October 2018. L. Gacheru J identified the single issue of whether the applicant met the Order 45 threshold. The Court found no discovery of new or important matter, no pinpointed error apparent on the face of the record, and no sufficient reason; seeking review of an already disallowed prayer amounted to the court sitting on its own appeal. The delay of over one year was unexplained and unreasonable. The application was dismissed entirely with costs to the Plaintiff, and the Court directed the main suit, filed in 2018, to be set down for expeditious hearing on merit, at which stage the Preliminary Objection would be considered.

Key legal issues

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01

Discovery of new and important matter as a ground for review

Holding

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

Reasoning

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.

p. 2
02

Error apparent on the face of the record

Holding

The applicant failed to pinpoint any error apparent on the face of the record

Reasoning

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.

p. 3
03

Sufficient reason and undue delay

Holding

No sufficient reason was advanced and the delay of over one year, unexplained, was unreasonable

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Defendant/Applicant's Notice of Motion application dated 25th June 2020 seeking review is dismissed entirely
  2. 2.Costs of the application awarded to the Plaintiff/Respondent
  3. 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

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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, "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.