Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operativeSociety Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 3629 (KLR)
The bottom line
#Kenya's Environment and Land Court corrected its contempt ruling: one name was added, two wrongly included parties were removed, but the main contempt findings stand.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to review after filing of a Notice of Appeal
The court retained jurisdiction despite the Notices of Appeal filed on 7th February 2024, adopting the Yani Haryanto line of authority as reflected by Odunga J
The Court of Appeal is divided on whether review can proceed after a Notice of Appeal. Following Odunga J in Christopher Musyoka Musau, the court held that a Notice of Appeal is merely a formal notification of intent to appeal and not an appeal; an appeal is only instituted when the record of appeal is lodged. Review is therefore not ousted by a mere notice.
Review application by the 2nd-5th Interested Parties
Dismissed - no error apparent on the face of the record, no new and compelling evidence, no sufficient reason
The photograph dated 30th/31st January 2024 was blurry and offered no insight into the status of the suit property. The applicants' assertions that no construction was ongoing attacked the merits of the ruling, which is the province of an appeal, not review. A review focuses on how the decision was arrived at, not its merit.
Inclusion of the 6th and 7th Interested Parties as contemnors
Allowed - their inclusion in paragraph 82(a) was in error since no contempt finding was made against them and the injunction orders of 25th May 2023 were not issued against them
The orders of 25th May 2023 were sought and granted against the 1st-5th Interested Parties only, not the 6th and 7th. The ruling of 25th January 2024 made no finding of contempt against the 6th and 7th; their inclusion in the ultimate list of contemnors was therefore an error apparent on the face of the record.
Petitioners' application to include the 4th Respondent, Stephen Mwadime
Allowed - the omission of his name from paragraphs 1a-1d and 82a of the ruling and from the consequential orders was an error apparent on the face of the record
The court found there was an error in failing to include the 4th Respondent's name in the paragraphs laying out the reliefs sought and in the final orders. This was a clerical mistake of the court, correctly correctable on review.
Legal principles established
#- Where practice and procedure rules are silent on an issue, parties may rely on the Civil Procedure Rules and the tests for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
- A Notice of Appeal is not an appeal, and the filing of a Notice of Appeal does not oust the court's jurisdiction to entertain an application for review
- A review is not an appeal; the court on review does not reconsider the merits of its decision
Court orders
#- 1.The name of the 4th Respondent, Stephen Mwadime, is included in paragraphs 1a, b, c, and d and at Paragraph 82a of the ruling dated 25th January 2024
- 2.The 4th Respondent shall be included as a contemnor in the orders, directions and notices issued pursuant to the ruling dated 25th January 2024
- 3.The names of the 6th and 7th Interested Parties are excluded and expunged from Paragraph 82(a) of the ruling dated 25th January 2024
- 4.The names of the 6th and 7th Interested Parties are excluded and expunged from the orders dated 25th January 2024
- 5.The 2nd – 5th Interested Parties' application dated 31st January 2024 is dismissed
- 6.Each party to bear its/his own costs
- Jurisdiction invoked
- Inherent powers under Rule 3(8) of the Practice and Procedure Rules read with Article 159(2)(d) and (e) of the Constitution; review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operativeSociety Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 3629 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3629/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.