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Case Brief · caselaw.co.ke
ELCDismissedPetition dated 26/04/2016 (Makueni ELC); Notice of Motion dated 27/05/2021· [2022] KEELC 362 (KLR)

Jackson Mutua Kavila v Government of Makueni County & 2 others [2022] KEELC 362 (KLR)

Environment and Land Court
20 April 2022
3,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a request to review its 2019 judgment, confirming that dissatisfaction with a ruling is grounds for appeal, not review.

What this practically means

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Executive summary

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The Petitioner/Applicant, who had supplied sand to China Road and Bridge Corporation for the Standard Gauge Railway construction, brought a Notice of Motion dated 27 May 2021 under Order 45 Rules 1 and 2 of the Civil Procedure Rules seeking stay of taxation of the Respondent's party and party bill of costs, stay of execution of the decree, review and setting aside of the court's judgment of 28 November 2019 dismissing his Petition challenging the constitutionality of the Makueni County Sand Conservation and Utilization Act 2015, and a de novo hearing of the Petition. He argued there was an error apparent on the face of the record in that the court had failed to pronounce itself on the interpretation of constitutional provisions on environment and natural resources and the Fourth Schedule on national and county government functions. The Respondent, through its Legal Officer Njeru Runji, opposed the application, noting that the Petitioner had not appealed, that the application was filed to defeat taxation of costs, and that it was filed inordinately late. The court identified the main issue as whether the judgment of 28 November 2019 could be reviewed or set aside. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, the court found no discovery of new and important matter, no error apparent on the face of the record (the complaints being grounds for appeal, not review), no sufficient reason, and an unexplained delay of one and a half years since judgment. Citing Nyamogo & Nyamogo v Kogo, Timber Manufacturers, Abasi Belinda and John Agina, the court dismissed the application with costs to the Respondents.

Key legal issues

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01

Error apparent on the face of the record

Holding

The alleged failure to consider certain constitutional interpretation issues was not an error apparent on the face of the record but grounds for appeal

Reasoning

The Applicant contended the court failed to pronounce itself on the interpretation of constitutional provisions on environment and natural resources and the Fourth Schedule. Citing Nyamogo & Nyamogo and Timber Manufacturers, the court held that an error apparent must be obvious and self-evident, requiring no elaborate argument. Dissatisfaction with the judgment or an erroneous view of law is a ground for appeal, not review. The Applicant did not pinpoint any error on the face of the record.

p. 5
02

Unreasonable delay in applying for review

Holding

An application filed one and a half years after judgment, unexplained, constitutes unreasonable delay

Reasoning

The judgment was delivered on 28 November 2019 and the application filed on 28 May 2021. The court found the duration far from reasonable and unexplained, relying on John Agina v Abdulswamad Sharif Alwi, where an unexplained delay of two years was held not to be sufficient reason to earn the court's sympathy.

p. 5
03

Sufficient reason for review

Holding

No sufficient reason was demonstrated to warrant review

Reasoning

Relying on The Official Receiver and Liquidator v Freight Forwarders Kenya Ltd, the court held that 'sufficient reason' must be sufficient to the court, but the Applicant failed to demonstrate any such reason beyond mere dissatisfaction with the outcome of the Petition.

p. 5

Legal principles established

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  • The grounds for review are limited to discovery of new and important matter or evidence, error apparent on the face of the record, any other sufficient reason, and application without unreasonable delay
  • An error apparent on the face of the record must be obvious and self-evident and does not require elaborate argument to be established
  • An erroneous view of evidence or law is not a ground for review, though it may be a good ground for appeal

Court orders

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  1. 1.The Notice of Motion dated 27th May 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondents
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1 and 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, "Jackson Mutua Kavila v Government of Makueni County & 2 others [2022] KEELC 362 (KLR)", Case Analysis (2022). Petition dated 26/04/2016 (Makueni ELC); Notice of Motion dated 27/05/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/362/eng@2022-04-20

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