Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party)
The bottom line
#A Kenyan court refused to review its ruling where the losing party never filed its submissions, confirming that appeal—not review—is the remedy for dissatisfaction.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's application met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
The application failed; there was no error apparent on the face of the record nor sufficient reason, as the Defendant's own laxity left its submissions off the record, and the outcome would have been the same in any event
The court traced the review grounds under Order 45 Rule 1 and Section 80, and adopted the Muyodi test that an error apparent on the face of the record must stare one in the face and admit no two opinions. The record showed the Defendant undertook to file submissions within two days but never did, and was absent on the mention date. The court ruled without the Defendant's submissions because they were not on file. A party cannot profit from its own omission, and dissatisfaction with a ruling is a matter for appeal, not review.
Legal principles established
#- A court cannot be blamed for not considering submissions that were not in the court file at the time of writing the ruling; a party's own failure to file and serve submissions is not an error apparent on the face of the record
- Where a party is dissatisfied with a ruling, the proper remedy is an appeal, not review
Court orders
#- 1.The Defendant's Notice of Motion dated 8th February 2023 seeking review of the ruling of 7th February 2023 is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party)", Case Analysis (2023). Environment & Land Case 28 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21603/eng@2023-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.