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ELCDismissedELC Case No. 1069 of 2015 (formerly HCCC No. 109 of 2013)· [2024] KEELC 652 (KLR)

C Dorman Ltd v Kenya Railways Corporation (Environment & Land Case 1069 of 2015) [2024] KEELC 652 (KLR)

Environment and Land Court
13 February 2024
3,208 words in judgment
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The bottom line

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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

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Executive summary

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Kenya Railways Corporation, the Defendant in a land suit brought by C. Dormans Limited, applied by notice of motion dated 15/08/2023 under Sections 3A, 4 and 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules for review, variation and setting aside of the order of 12/10/2015 by which Hon. Lady Justice Aburili transferred the suit from the High Court (HCCC No. 109 of 2013) to the Environment and Land Court (ELC Case No. 1069 of 2015), and for the Plaint dated 4/04/2013 to be struck out. The Applicant argued that land disputes fall within the exclusive jurisdiction of the ELC under Articles 162 and 165 of the Constitution and Section 13 of the ELC Act, so the High Court lacked jurisdiction to make any orders, relying on the Supreme Court's decision in Albert Chaurembo Mumba. The Plaintiff opposed on grounds that the transfer was made under Section 30 of the ELC Act and Paragraph 5 of the Chief Justice's Practice Directions at a time the ELC was not fully operationalized, that no new evidence, error apparent on the record, or sufficient reason for review was shown, and that the application was brought after over eight years of inordinate delay. Mogeni J restated the conditions for review, holding that review is a creature of statute, is not an appeal in disguise, and that an error apparent on the face of the record must be obvious and self-evident. The court found the application to be a disguised appeal, noted the court was functus officio, and dismissed the application with costs on 13 February 2024.

Key legal issues

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01

Whether the order of 12/10/2015 transferring the suit to the ELC is reviewable

Holding

It is not reviewable on the grounds advanced; the Applicant did not establish any of the conditions for review under Order 45 Rule 1.

Reasoning

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.

p. 5
02

Whether the transfer order was null and void for lack of jurisdiction

Holding

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.

Reasoning

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.

p. 4
03

What constitutes an error apparent on the face of the record

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Defendant's Application dated 15/08/2023 is found to be without merit and is dismissed with costs
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 4, 80
  • Civil Procedure Rules 2010Order 45 Rule 1
  • Constitution of Kenya 2010Articles 162, 165
  • Environment and Land Court Act (No. 19 of 2011)Sections 13, 30
  • Chief Justice Willy Mutunga's Practice Directions on Proceedings in the Environment & Land Courts (Gazette Notice No. 5178 of 25/07/2014)Paragraph 5

Cases cited (7)

  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Wangechi Kimita & Another v Mutahi Wakabiru
    CA No. 80 of 1985 (unreported)
  • Brown v Dean
    (1910) AC 373
  • West Bengal v Kamal Sengupta
    AIR 2009 SC 476
  • Muyodi v Industrial and Commercial Development Corporation and Another
    EALR (2006) EA 243
  • Nyamogo & Nyamogo v Kogo
    (2001) EA 174
  • Chandrakhant Joshibhai Patel v R
    [2004] TLR, 218
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

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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, "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.