C Dorman Ltd v Kenya Railways Corporation (Environment & Land Case 1069 of 2015) [2024] KEELC 652 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed Kenya Railways' bid to undo a 2015 case transfer, ruling a review is not a second chance to appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 12/10/2015 transferring the suit to the ELC is reviewable
It is not reviewable on the grounds advanced; the Applicant did not establish any of the conditions for review under Order 45 Rule 1.
The court set out the four conditions for review: discovery of new and important matter, mistake or error apparent on the face of the record, any other sufficient reason, and application without unreasonable delay. The Applicant established none: the transfer order was made under Section 30 of the ELC Act and Paragraph 5 of the Chief Justice's Practice Directions, and the application was filed over eight years after the order, constituting inordinate delay.
Whether the transfer order was null and void for lack of jurisdiction
No; the transfer was lawful, being made under Section 30 of the Environment and Land Court Act and the Chief Justice's Practice Directions at a time the ELC was being operationalized.
The Plaintiff demonstrated that at filing in 2013 the ELC was not fully operationalized, and the 2015 transfer order was predicated on Section 30 of the ELC Act and Paragraph 5 of the Practice Directions, which required pending land cases in the High Court to be transferred. The court concurred with the Plaintiff's position and found no error apparent on the record.
What constitutes an error apparent on the face of the record
An error apparent must be obvious, self-evident and not require a long drawn process of reasoning; a merely erroneous decision is a ground for appeal, not review.
Relying on Muyodi v ICDC and related authorities, the court restated that an error apparent on the face of the record cannot be precisely defined, must stare one in the face with no two reasonable opinions, and a possible view adopted by the original court cannot be an error for review purposes.
Legal principles established
#- A wrong decision is a ground for appeal, not for review; review lies only for error apparent on the face of the record, which must be obvious and self-evident and not require elaborate argument
- A review application that seeks to re-litigate the correctness of an order is a disguised appeal
- An application for review must be made without unreasonable delay
Court orders
#- 1.The Defendant's Application dated 15/08/2023 is found to be without merit and is dismissed with costs
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Sections 3A, 4 & 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules 2010 (review jurisdiction); jurisdiction over land disputes under Articles 162 and 165 of the Constitution and Section 13 of the Environment and Land Court Act 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C Dorman Ltd v Kenya Railways Corporation (Environment & Land Case 1069 of 2015) [2024] KEELC 652 (KLR)", Case Analysis (2024). ELC Case No. 1069 of 2015 (formerly HCCC No. 109 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/652/eng@2024-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.