Exparte Applicant Peter Mwika M’omaingi & another v Attorney General; Silas Mugambi & another (Interested Parties) [2022] KEELC 575 (KLR)
The bottom line
#The Meru Environment and Land Court ruled that once leave for judicial review is granted after a full hearing, opponents cannot relitigate the same objection later.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was res judicata
Yes; the court had already heard the respondent and interested parties on the leave application and ruled on 18.9.2019, so the issue could not be relitigated.
The chamber summons seeking leave and extension of time was heard inter partes on 24.4.2019 and 6.5.2019, with a replying affidavit by the respondent. The court considered the circumstances and opposition and granted leave on 18.9.2019. There was no appeal against that ruling, so the same issues raised in the preliminary objection are res judicata and cannot be relitigated.
Whether a preliminary objection can operate as a review or appeal of the court's own order
No; a preliminary objection cannot be used as a review or appeal of the court's own orders.
Relying on Biren Amritlal Shah, there is no provision for review by a superior court of its own decision in judicial review once rendered. The aggrieved parties' remedies were to appeal the leave ruling or respond to and argue the notice of motion at the substantive hearing. The objection is a disguised appeal and must fail.
Legal principles established
#- A preliminary objection challenging the grant of leave, after an inter partes hearing and a ruling thereon, is res judicata under Section 7 of the Civil Procedure Act.
- A court cannot sit on appeal over or review its own orders through a preliminary objection; the remedy is appeal or to argue the issue at the substantive hearing.
- Once leave has been granted after an inter partes hearing and determined, the issue of leave becomes spent.
Court orders
#- 1.The preliminary objection dated 28.1.2020 is dismissed with costs
- 2.Parties to file their responses and written submissions within 60 days from the date of the ruling
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act Cap 26; Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Exparte Applicant Peter Mwika M’omaingi & another v Attorney General; Silas Mugambi & another (Interested Parties) [2022] KEELC 575 (KLR)", Case Analysis (2022). Not stated in judgment (Judicial Review proceedings, Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/575/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.