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ELCDismissedEnvironment and Land Judicial Review Case E007 of 2022· [2023] KEELC 21632 (KLR)

Republic v Deputy Commissioner Matungulu Sub-County & 4 others; Muinde (Suing as the legal representative of the Estate of Daniel Muinde Mutiso alias Muinde Mutiso) (Exparte Applicant); Kiselu & 3 others (Interested Parties)

Environment and Land Court
20 November 2023
COCA Ochieng
2,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a bid to review its earlier ruling, confirming you must choose between review and appeal—you cannot pursue both.

What this practically means

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Executive summary

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The ex parte Applicant, Michael Kithuka Muinde, moved the Court by Notice of Motion dated 10th May 2023 seeking review and variation of the Court's Ruling of 19th April 2023, which had dismissed his application for leave to commence judicial review seeking certiorari against a Minister's Judgment in Appeal Case No. 106 of 1994 under the Land Adjudication Act. He argued the Ministerial Judgment was ambiguous, undated, time-barred under Section 4(4) of the Limitation of Actions Act, and unenforceable, and that the Court erred in relying on it. The Respondents and Interested Parties opposed, contending no error apparent on the face of the record existed, the matters were not new, and the Applicant was inviting the Court to sit on appeal over its own decision. The Court framed a single issue: whether it should review or vary its Ruling of 19th April 2023. Applying Nyamogo & Nyamogo v Kogo and National Bank of Kenya Ltd v Ndungu Njau, the Court held the alleged errors arose from a long process of reasoning and were at best grounds of appeal, not review; the Applicant was delving into the merits of the earlier Ruling and raised no new matter. The Court further noted the Applicant had lodged a Notice of Appeal, and a party cannot pursue both review and appeal under Order 45 Rule 1(1)(a). The application was dismissed with costs to the Respondents and Interested Parties.

Key legal issues

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01

Whether the Ruling of 19th April 2023 should be reviewed or varied

Holding

The application for review fails; the alleged errors require long-drawn reasoning and are grounds for appeal, not review

Reasoning

Applying Nyamogo & Nyamogo v Kogo and National Bank of Kenya v Ndungu Njau, the court held that alleged errors drawn from a long process of reasoning, where two opinions are conceivable, are not errors apparent on the face of the record. The Applicant sought reappraisal of evidence and a different conclusion, which is an appeal, not review. No new matter was raised, and the Applicant had also lodged a Notice of Appeal, precluding review.

p. 5

Legal principles established

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  • A party cannot pursue both review and appeal of the same order; Order 45 Rule 1(1)(a) requires taking only one option
  • A court cannot sit on appeal over its own decision; a wrong conclusion of law is a ground for appeal, not review

Court orders

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  1. 1.The Notice of Motion Application dated 10th May, 2023 is disallowed
  2. 2.Costs are awarded to the Respondents and Interested Parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3; Order 51 Rules 1, 3, 4 and 10; Order 21 Rule 3(1)
  • Civil Procedure ActSections 1A, 1B, 3A and 80
  • Land Adjudication ActSection 29
  • Limitation of Actions ActSection 4(4)
  • Constitution of KenyaArticle 50

Cases cited (13)

  • Gilbert Mwangi Njuguna v Judicial Service Commission & Another
    [2020] eKLR
  • Donald O. Raballa v Judicial Service Commission & Another
    [2018] eKLR
  • Sylvester Nthenge v Johnstone Kiamba Kiswili
    [2021] eKLR
  • Peter Biwott v Samuel Biwott & 3 Others
    [2015] eKLR
  • Ndagara W/O Kauthumbu Substituted by Peter Muriithi & Muriuki Kaumbuthu v Mbogo Katharangushu Substituted by Nyaga S/O Mbogo (Deceased) & 4 Others
    [2021] eKLR
  • Hosea Nyandika Mosagwe & 2 Others v County Government of Nyamira
    [2022] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 Others
    [2018] eKLR
  • Evans Bwire v Andrew Aginda
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Commissioner of Lands v Kunste Hotel Limited
    [1997] eKLR
  • Paul Mwaniki v NHIF Board of Management
    [2020] eKLR
  • Nyamogo & Nyamogo v Kogo
    (2001) EA 174

    Definition of error apparent on the face of the record; distinction between erroneous decision and error apparent

  • National Bank Of Kenya Limited v Ndungu Njau
    [1997] eKLR

    A wrong conclusion of law is a ground for appeal, not review; a court cannot sit in appeal on its own judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3, Order 51 Rules 1, 3, 4 and 10 and Order 21 Rule 3(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, "Republic v Deputy Commissioner Matungulu Sub-County & 4 others; Muinde (Suing as the legal representative of the Estate of Daniel Muinde Mutiso alias Muinde Mutiso) (Exparte Applicant); Kiselu & 3 others (Interested Parties)", Case Analysis (2023). Environment and Land Judicial Review Case E007 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21632/eng@2023-11-20

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