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ELCDismissedEnvironment and Land Appeal 42 of 2021 (Formerly Migori ELC Appeal No. 12 of 2020)· [2023] KEELC 18979 (KLR)

Opany v Odhiambo

Environment and Land Court
25 July 2023
GOGMA Ongondo
1,439 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can review its own judgments after delivery, so long as no appeal has been filed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (GMA Ongondo, J) determines a Notice of Preliminary Objection dated October 31, 2022 raised by the respondent, Ronald Ochieng Odhiambo, against the appellant's notice of motion dated July 18, 2022 seeking review of the court's judgment delivered on June 21, 2022 on account of discovery of new evidence. The respondent contended that the court was functus officio having rendered its judgment, and could not entertain a review. The appellant filed no submissions. The court applied the Mukisa Biscuits definition of a preliminary objection and framed the sole issue as whether it had jurisdiction to re-open and review its decision in a concluded appeal. Relying on the Supreme Court's decision in Manchester Outfitters, the court held that a court that is not one of final determination - like the High Court and, by extension, this Court - has jurisdiction under Section 80 of the Civil Procedure Act read with Order 45 of the Civil Procedure Rules to review its own judgments. It further noted that review and appeal are not simultaneously available, and that no appeal had been filed against the June 21, 2022 judgment. The court therefore found it had jurisdiction to entertain the review application, disallowed the preliminary objection, and ordered costs to be in the cause. The substantive review application remains pending for determination on its merits.

Key legal issues

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01

Whether the court is functus officio after delivering judgment in the appeal

Holding

The preliminary objection fails; the court retains jurisdiction to entertain the appellant's application for review dated July 18, 2022.

Reasoning

Relying on Manchester Outfitters (SC), the court reasoned that courts of final determination are not the only ones that may review their decisions; the High Court and courts of the same standing may review their judgments under Section 80 of the Civil Procedure Act and Order 45. Since no appeal had been filed against the June 21, 2022 judgment, review was available and the functus officio objection could not stand.

p. 3
02

What constitutes a valid preliminary objection

Holding

The court applied the Mukisa Biscuits definition: a preliminary objection is a point of law which, if argued as a preliminary point, may dispose of the suit.

Reasoning

The court cited the locus classicus Mukisa Biscuits formulation and noted the objection was on a point of law and could dispose of the suit, then framed the single issue as the court's jurisdiction to re-open and review its decision in a concluded appeal.

p. 2

Legal principles established

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  • The Environment and Land Court, like the High Court, has jurisdiction under Section 80 of the Civil Procedure Act read with Order 45 of the Civil Procedure Rules to review its own judgments, including in a concluded appeal.
  • Review and appeal are not simultaneously available to an aggrieved party; where no appeal has been filed against the decision, the court may entertain an application for review.

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated October 31, 2022 is disallowed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13(1)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1; Order 45 rule 1(a) and (b)

Cases cited (7)

  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    (2013) eKLR

    Direction that preliminary objections be heard by written submissions in the spirit of Article 159(2)(b).

  • Raila Odinga and others v IEBC and others
    (2013) eKLR

    Relied on by respondent's counsel to support the functus officio objection.

  • Mukisa Biscuits Manufacturing Ltd v West End Distributors
    (1969) EA 696

    Definition of what constitutes a preliminary objection.

  • Owners of Motor Vessel "Lillian S" v Caltex Oil (K) Ltd
    [1989] KLR 1

    Jurisdiction is everything; a court downs tools once it finds it lacks jurisdiction.

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot be self-conferred.

  • Fredrick Otieno Outa v Jared Odoyo Okello & 3 others
    [2017] eKLR

    A final court of justice is clothed with inherent powers to do justice; litigation must end but justice matters.

  • Manchester Outfitters (Suiting Division) Ltd (now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others
    [2019] eKLR

    The High Court has jurisdiction to review its judgments under Section 80 CPC read with Order 45; a non-final court may re-open its decisions.

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Section 13(1) of the Environment and Land Court Act

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, "Opany v Odhiambo", Case Analysis (2023). Environment and Land Appeal 42 of 2021 (Formerly Migori ELC Appeal No. 12 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18979/eng@2023-07-25

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