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ELCDismissedNot stated in judgment (arising from appeal against Garissa CM ELC No. 001 of 2022)· [2024] KEELC 992 (KLR)

Osman & 3 others (Suing on behalf of the Estate of the deceased Ali Osman) v Osman (Environment & Land Case 2 of 2023) [2024] KEELC 992 (KLR)

Environment and Land Court
28 February 2024
2,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that if you disagree with a court decision, you must appeal — review applications can't fix decisions you simply think are wrong.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Garissa (J. M. Mutungi, ELC Judge) on the Defendant's Notice of Motion dated June 20, 2023. The Defendant sought review of the Court's Ruling of March 22, 2023, which had transferred Garissa CM ELC No. 001 of 2022 from the Chief Magistrate's Court to the ELC in exercise of the Court's supervisory jurisdiction. That earlier ruling was prompted by two conflicting valuation reports of the suit property, L.R No. Garissa Town/Block 1/81 (Kshs 18,200,000 and Kshs 40,000,000), which raised doubt over the Lower Court's pecuniary jurisdiction. The Defendant, relying on several authorities, argued that a suit filed in a court without jurisdiction is incompetent ab initio and cannot be cured by transfer, and sought striking out of the suit or its retransfer to the Lower Court. The Plaintiffs opposed, contending no review conditions were met, the ELC had unlimited jurisdiction to withdraw suits from subordinate courts, and the application was an abuse of process. The Court held that the grounds for review under Order 45 rule 1 were not established: there was no new matter, no error apparent on the face of the record, and no other sufficient reason. It found the application merely invited the Court to sit on appeal against its own ruling, for which the proper remedy is an appeal. Following Peter Kirika Githaiga v Rashid, the Court also held the application was not fatally defective for failure to annex the order sought to be reviewed. The application was dismissed with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether the conditions for review under Order 45 rule 1 were met

Holding

They were not met: no new and important matter, no error apparent on the face of the record, and no other sufficient reason was demonstrated.

Reasoning

The Court had considered the two conflicting valuation reports and the Lower Court's pecuniary jurisdiction when it delivered the Ruling of March 22, 2023. Nothing new was placed before it. The application merely questioned the merits of the decision, which is a matter for appeal and not review.

p. 4
02

Whether the suit should be struck out for want of pecuniary jurisdiction or retransferred to the Subordinate Court

Holding

No. The transfer to the ELC was properly made in exercise of the Court's supervisory jurisdiction under Articles 165(6) & (7) and 162(2)(b) to settle the jurisdictional question and allow the suit to proceed to trial on merits.

Reasoning

The two valuation reports valued the suit property at Kshs 18,200,000 and Kshs 40,000,000 respectively, and the Court found the reports possibly tailored to the parties' arguments. To do justice between the parties, the Court invoked its supervisory jurisdiction and transferred the suit to the ELC rather than strike it out.

p. 4
03

Whether the review application was fatally defective for failure to annex the order/ruling sought to be reviewed

Holding

It was not defective; per the Court of Appeal in Peter Kirika Githaiga & another v Rashid, an unextracted order does not defeat a review application where the decision complained of is identifiable on the court file.

Reasoning

The Court agreed with the cited Court of Appeal authority and found there was no doubt as to which Ruling/Order the Defendant wanted reviewed and in what respects, since the ruling was on the Court file.

p. 4

Legal principles established

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  • An erroneous decision cannot be corrected through an application for review; the remedy is an appeal
  • Failure to extract or attach a formal order or decree to a review application does not render the application fatally defective if the party can direct the Court's attention to the part of the ruling complained of
  • A review application cannot be used to invite a court to sit on appeal against its own decision

Court orders

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  1. 1.The Defendant's Notice of Motion dated June 20, 2023 seeking review of the Ruling dated March 22, 2023 is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule (1)
  • Civil Procedure ActSection 80
  • Environment and Land Court ActSections 3 and 19(1)
  • Constitution of KenyaArticles 48, 50(1), 159(2), 162(2)(b), 165(6) & (7)

Cases cited (8)

  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    (2019) eKLR
  • John Adoyo & 6 others v De la Rue Currency & Security print Ltd
    (2022) eKLR
  • Shanzu Investments Ltd v Commissioner of Lands
    (1993) eKLR
  • Abraham Mwangi Wamigwi v Simon Mbiri Wanjiku & another
    (2012) eKLR
  • Boniface Waweru Mbiyu v Mary Njeri & another
    (2005) eKLR
  • Wamathu Gichoya v Mary Wainoi Magu
    (2015) eKLR
  • Republic v Advocates Disciplinary Tribunal Exparte Appollo Mboya
    (2019) eKLR
  • Peter Kirika Githaiga & another v Rashid
    (2016) eKLR
Jurisdiction invoked
Environment and Land Court Act, sections 3 and 19(1); Articles 48, 50(1), 159(2), 162(2)(b) and 165(6) & (7) of the Constitution (supervisory jurisdiction over subordinate courts)

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, "Osman & 3 others (Suing on behalf of the Estate of the deceased Ali Osman) v Osman (Environment & Land Case 2 of 2023) [2024] KEELC 992 (KLR)", Case Analysis (2024). Not stated in judgment (arising from appeal against Garissa CM ELC No. 001 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/992/eng@2024-02-28

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