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ELCPartially AllowedEnvironment & Land Case 200 of 2021· [2023] KEELC 19007 (KLR)

Curly Wurly Limited & 3 others v Kenya Ports Authority & another

Environment and Land Court
26 July 2023
NMN.A. MATHEKA
1,392 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 in Mombasa reversed its own transfer of a land dispute to Kwale after confirming the properties are actually in Mombasa.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Mathéka, J) on a notice of motion dated March 21, 2023 brought by the four plaintiffs under Order 45(1)(2) and 51(1) of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, seeking review and variation of an order made on March 21, 2023 transferring the suit to Kwale ELC for lack of territorial jurisdiction. The transfer had been made on the oral application of the 2nd Defendant (National Land Commission), relying on the ruling in Mombasa ELC Petition 9 of 2018, Chunky Limited & Another v Patrice Ndune & 10 Others, on the assertion that the suit properties were in Kwale. The applicants contended that the suit properties, Plots No. 500/Section VI/MN and 2424/Section VI/MN, are located within Mombasa, and that the transfer was made in apparent error. The court set out the review framework under Section 80 of the Civil Procedure Act and Order 45 Rule 1, citing Kwame Kariuki, Mwihoko Housing, Rose Kaiza and National Bank of Kenya v Ndungu Njau for the principles that review corrects self-evident errors, is unavailable once an appeal is preferred, and that the discretion must be exercised judiciously. Perusing the record, the court found that counsel for the applicant had misled it as to the location of the subject matter, that the plots are within Mombasa and within the court's territorial jurisdiction, and allowed the application as prayed, effectively reverting the transfer. No express costs order was made.

Key legal issues

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01

Whether the transfer order of March 21, 2023 was made in error apparent on the face of the record

Holding

Yes - the court found that counsel misled it as to the location of the suit properties, which are in Mombasa, not Kwale, so the transfer was made in apparent error and was reviewed.

Reasoning

The court perused its record and found the transfer was based on the 2nd Defendant's assertion that the properties were in Kwale. The court found the plots 500/Section VI/MN and 2424/Section VI/MN are located within Mombasa, within its territorial jurisdiction, making the error self-evident and meriting review under Order 45 and Section 80.

02

The legal framework and discretion governing review

Holding

Section 80 of the Civil Procedure Act gives the court discretion to review its decision on sufficient reason, to be exercised judiciously, not capriciously.

Reasoning

The court set out Order 45 Rule 1 and Section 80 of the Civil Procedure Act, and relied on National Bank of Kenya v Ndungu Njau and Mwihoko Housing, holding the error must be self-evident and not require elaborate argument; misconstruing a statute or a different view on the law is not a ground for review.

p. 3

Legal principles established

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  • A review may be granted to correct an apparent error or omission on the part of the court, provided the error is self-evident and does not require elaborate argument.
  • Review is only available where no appeal has been preferred against the order.

Court orders

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  1. 1.The orders issued on March 21, 2023 transferring the suit to Kwale ELC are reviewed and varied, reverting the transfer
  2. 2.The suit remains within the territorial jurisdiction of the Environment and Land Court at Mombasa

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 (1)(2)
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure Act Cap 21 Laws of KenyaSections 1A, 1B, 3, 3A and 80

Cases cited (5)

  • Kwame Kariuki & Another vs Mohamed Hassan Ali & 4 Others
    (2014) eKLR

    Review is only available where no appeal has been preferred against the order.

  • Mwihoko Housing Company Limited vs Equity Building Society
    (2007) 2 KLR 171

    Review may correct a self-evident error or omission; misconstruing a statute is not a ground for review.

  • Rose Kaiza Vs Angelo Mpanju Kaiza
    2009

    An application for review under Order 44 Rule 1 must be clear and specific on the basis upon which it is made.

  • National Bank of Kenya vs Ndungu Njau
    Civil Appeal No. 211 of 1996

    Review may be granted to correct an apparent error or omission that is self-evident and requires no elaborate argument.

  • Chunky Limited & Another vs Patrice Ndune & 10 Others
    Mombasa ELC Petition 9 of 2018

    The ruling relied on by the 2nd Defendant to support transfer to Kwale ELC for lack of territorial jurisdiction.

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act (Cap 21) and Orders 45(1)(2) and 51(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, "Curly Wurly Limited & 3 others v Kenya Ports Authority & another", Case Analysis (2023). Environment & Land Case 200 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19007/eng@2023-07-26

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