ARJ Capital Limted v Njeru & 3 others (Environment and Land Case E041 of 2022) [2024] KEELC 323 (KLR)
The bottom line
#A Kenyan land court refused to review earlier directions, confirming that missed court dates, delay, and disagreement are grounds for appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was properly defended by grounds of opposition alone
The application stood unopposed since no replying affidavit was filed, but the court still determined it on its merits.
Order 51 rule 14 permits opposition by notice of preliminary objection, replying affidavit or grounds of opposition. However, grounds of opposition address only questions of law and are general averments that cannot controvert sworn allegations. Citing Daniel Kibet Mutai and Kennedy Otieno Odiyo, the court held the averments uncontroverted, yet emphasized that unopposed applications are not automatically allowed and must still be determined on merit.
Whether the directions of 9/05/2023 should be reviewed and/or set aside
No - the Applicant failed to establish any ground for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1).
Review requires discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay. The court found no error apparent: opposing an application by filing another application is not a recognized mode of opposition, so counsel did not misdirect the court. The application was filed 59 days after the directions, amounting to inordinate delay, and was in substance a disguised appeal.
Whether the Plaintiff's rights to a fair hearing under Article 50(1) were violated
No violation - the Plaintiff was aware of the 9/05/2023 mention date but failed to appear despite service of the mention notice.
The record showed the Plaintiff served the mention notice dated 5/05/2023 on the Defendants and filed a return of service on 9/05/2023, and its advocate admitted awareness of the date. The Deputy Registrar had given the directions date on 8/03/2023. The directions of 9/05/2023 were therefore given with the Plaintiff having had proper notice and an opportunity to attend.
The scope of third party proceedings and the Plaintiff's position in ELC No. 766 of 2016
Third party proceedings are not limited to contribution or indemnity; an enjoined third party may enter appearance and dispute the plaintiff's claim by defence or defence and counterclaim.
Relying on Order 1 rules 15 and 17 of the Civil Procedure Rules, the court held that sub-rule (c) of Order 15 rule 1 envisages issues between all parties including the third party and the plaintiff. Since the Plaintiff had been enjoined as a third party in ELC No. 766 of 2016 by Justice Okong'o's ruling of 19/12/2022, it has a platform to pursue its claim there, undermining its consolidation application.
Legal principles established
#- Grounds of opposition address only issues of law and cannot amount to a proper denial of allegations made on oath; where no replying affidavit is filed, the averments in an application are deemed uncontroverted, but the court must still determine the application on its merits.
- An error apparent on the face of the record justifying review must be obvious and self-evident, not one established by a long drawn process of reasoning or on which two opinions may be held.
- Review is not an appeal in disguise; a wrong decision is a ground for appeal, not review, and the power of review is exercised to remove an error, not to disturb finality or substitute a view.
- A third party enjoined to a suit may dispute the plaintiff's claim by filing a defence or a defence and counterclaim; third party proceedings are not limited to contribution or indemnity.
Court orders
#- 1.The Plaintiff's Application dated 25/07/2023 is dismissed with costs.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 and Order 51 of the Civil Procedure Rules, 2010; Articles 50(1) and 159(2)(d) & (e) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Koichi Realtors Limited & 2 others v Takawa Earth Resources Limited & 3 others[2026] KEELC 6047 (KLR)25 Sept 2026applied
- Nirestein & another v Taga & 3 others (Environment and Land Case E003 of 2024) [2025] KEELC 8105 (KLR)[2025] KEELC 8105 (KLR)20 Nov 2025
- Raghwani & 2 others v Kerai (Legal Representative of the Estate of Kanji Mavji Kerai) (Enviromental and Land Originating Summons E042 of 2021) [2025] KEELC 7684 (KLR)[2025] KEELC 7684 (KLR)6 Nov 2025
- Republic v James Finlay (Kenya) Ltd & another; National Land Commission & 4 others (Interested Parties); Cheruiyot & another (Ex parte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 6970 (KLR)[2024] KEELC 6970 (KLR)24 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "ARJ Capital Limted v Njeru & 3 others (Environment and Land Case E041 of 2022) [2024] KEELC 323 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/323/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.