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ELCDismissedEnvironment & Land Case 28 of 2022· [2023] KEELC 21603 (KLR)

Watamu Hospital Limited v ATC Kenya Operations Limited; National Environment Management Authority (Interested Party)

Environment and Land Court
14 November 2023
1,793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 8th February 2023 by the Defendant, ATC Kenya Operations Limited, seeking to set aside, review, vary and/or vacate the court's ruling of 7th February 2023, and to have the court reconsider the Defendant's Preliminary Objection dated 24th May 2022 challenging the court's jurisdiction. The Defendant, through its advocate Ndolo Felix Onyango, argued that the ruling of 7th February 2023 was delivered without consideration of the Defendant's written submissions, amounting to an error apparent on the face of the record and sufficient reason for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Plaintiff, through its advocate Margaret Mose Kombe, opposed, contending that the Defendant failed to attend court and failed to file and serve its submissions within the timelines directed, so there was no error apparent. The court framed a single issue: whether the application met the threshold for review. Applying the Muyodi test on error apparent on the face of the record, the court found that the Defendant had undertaken to file submissions within two days but never did, and was absent when a ruling date was taken on 25th October 2022. The court could not be blamed for not considering submissions that were not in the file. It further held that even if the submissions had been on file, the same conclusion on jurisdiction would have been reached, and that a dissatisfied party should appeal rather than seek review. The application was dismissed with costs.

Key legal issues

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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

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Defendant's Notice of Motion dated 8th February 2023 seeking review of the ruling of 7th February 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR

    Parameters within which a party can seek orders of review

  • Ajit Kumar Rath Vs State of Orisa & Others

    Parameters for seeking orders of review

  • Bridget Elsie Davies v National Land Commission & 4 others
    [2020] eKLR

    Review allowed only on very strong grounds, particularly where its effect would reopen the case afresh

  • Muyodi vs. Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243

    Definition of error apparent on the face of the record

  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174

    Error apparent on the face of the record cannot be defined precisely; distinction between erroneous decision and apparent error

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "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.