Abdalla & 6 others v Khansa Developers Limited & 3 others (Constitutional Petition 16 of 2022) [2024] KEELC 3667 (KLR)
The bottom line
#A Mombasa court conditionally revived a developer's contested 18-storey project, but only if it shrinks to 16 floors, redoes its environmental assessment, and wins fresh approvals.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to entertain the review application given the filing of a Notice of Appeal
The court had jurisdiction because only a Notice of Appeal had been lodged; no appeal had been instituted under Rule 82(1) of the Appellate Jurisdiction Act, and the petitioner bore the burden of proving otherwise under Section 107 of the Evidence Act
Counsel for the petitioner argued that a pending appeal barred review under Order 45. Counsel for the applicant conceded only a Notice of Appeal was filed, not an appeal under Rule 82. Applying Rule 82(1) and the burden of proof under Section 107 of the Evidence Act, the court found no evidence an appeal had been instituted, so it retained jurisdiction over the review application.
Whether the post-judgment validation letters amounted to new and important matter or evidence
No - the documents post-dated the judgment and could not have existed earlier; they were an attempt to circumvent the court's orders
The validation letters from the County Government of Mombasa and NEMA were dated 18th and 24th July 2023, after the judgment of 22nd February 2023. Evidence must have existed but not been discoverable with due diligence to qualify under Order 45. Documents created after a decree cannot be new evidence, and a party cannot 'validate' what a court has declared null and void.
Whether the alleged failure to incorporate the corrected draft site visit report was an error apparent on the face of the record
No - the alleged failure to consider the applicant's deletions and submissions was at most a ground of appeal, not review
Relying on Nyamogo & Nyamogo v Kogo, National Bank of Kenya v Ndungu Njau and Abasi Balinda v Fredrick Kangwamu, the court held that an error apparent must be self-evident and not require elaborate argument. A complaint that the judge failed to consider evidence or reached an erroneous conclusion invites re-appraisal, which is appellate in nature and impermissible on review.
Whether there was any other sufficient reason to warrant review
Yes - the court found, on a 'thin membrane', that sufficient cause existed, holding the applicant had demonstrated a sufficient reason to warrant review, subject to strict pre-conditions
Despite rejecting the new-evidence and error-apparent grounds, the court invoked the residual 'sufficient reason' limb of Order 45 Rule 1, noting Shanzu Investments Ltd that the ground need not be analogous to the other two. It then imposed pre-conditions: reduction of the building from 18 to 16 floors, fresh EIA under Section 58(1) of EMCA, fresh development approvals and full public participation.
Whether the application was brought without unreasonable delay
Yes - the interval from judgment (stated as 22nd March, 2023) to the application dated 26th July, 2023 was deemed reasonable
Order 45 Rule 1 requires an application for review to be brought without unreasonable delay. The court noted the application was filed about five months after judgment and held the duration reasonable, distinguishing from the petitioner's contention of inordinate and unexplained delay of five months.
Legal principles established
#- A party cannot validate by administrative process that which a court has declared null and void; only the court that issued the orders or an appellate court may set them aside
- Review must be confined to error apparent on the face of the record; re-appraisal of evidence amounts to appellate jurisdiction
- An appeal is instituted only by lodging a memorandum and record of appeal under Rule 82(1) of the Appellate Jurisdiction Act; a mere Notice of Appeal does not constitute an appeal so as to divest the trial court of jurisdiction to review
Court orders
#- 1.That the Notice of Motion application dated 26th July 2023 by the 1st Respondent be and is hereby found to be meritorious and hence allowed upon fulfilment of the stated conditions
- 2.That the Judgement delivered by the Court on 22nd March, 2023 be and is hereby set aside upon the Respondents fulfilling the pre-conditions laid out in the Ruling without failure
- 3.That a declaration be issued that the proposed development of 18 floors storey building Plot Number Mombasa/Block/XXVI/595 be reduced to 16 floors and be in compliance with Articles 10, 40, 42 and 69 of the Constitution of Kenya, 2010
- 4.That a fresh Environmental Impact Assessment Report in accordance with Section 58(1) of EMCA, 1999 be prepared and issued by NEMA within 30 days and new development plans be prepared by the County Government of Mombasa Physical Planner with stringent environmental and construction safety precautionary measures
- 5.That the 1st Respondent apply afresh for development approvals by the 3rd and 4th Respondents for the proposed 16 floors storey building upon compliance with Articles 10, 40, 42, 47 and 69 of the Constitution
- 6.That each party to bear their own costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e) & 80 of the Civil Procedure Act, Cap 21; Orders 45 Rules 1 & 2 and 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 27(1), (2), 48, 50(1) and 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutai (Suing as the Administrator of the Estate of the Late Joseph Kiptum Bitok) v Chelulei (Environment and Land Case E007 of 2023) [2025] KEELC 6631 (KLR)[2025] KEELC 6631 (KLR)2 Oct 2025
- Bartilol & another v Ngomat (Environment & Land Case 39 of 2015) [2025] KEELC 1331 (KLR)[2025] KEELC 1331 (KLR)19 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Abdalla & 6 others v Khansa Developers Limited & 3 others (Constitutional Petition 16 of 2022) [2024] KEELC 3667 (KLR)", Case Analysis (2024). Constitution Petition No. 16 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3667/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.