Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 67 of 2020· [2024] KEELC 5728 (KLR)

Mramba & 45 others v St Elizabeth Academy - Karen Limited & 2 others (Enviromental and Land Originating Summons 67 of 2020) [2024] KEELC 5728 (KLR)

Environment and Land Court
22 July 2024
9,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Mombasa dismissed an attempt to reopen its earlier orders, confirming that Kenyan courts only review decisions on narrow, strictly defined grounds.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Mombasa (Naikuni J, dated 22nd July 2024) on a Notice of Motion dated 13th March 2024 by the defendants (St. Elizabeth Academy – Karen Limited, Anne Wanjiku Munene and Ayub Kianja) seeking review and setting aside of the court's ex-parte orders of 31st May 2023, reinstatement of the Ruling of 28th July 2022 staying the suit as sub judice pending determination of ELC No. 24 of 2018, and setting aside of ex-parte orders permitting the withdrawal of ELC No. 24 of 2018. The applicants argued there was an error apparent on the face of the record because the voluntary withdrawal of ELC No. 24 of 2018 did not dispose of a live counterclaim therein. The plaintiffs opposed, maintaining they were not parties to ELC No. 24 of 2018 and claiming adverse possession of LR. 395/II/MN. The court, having conducted a site visit (locus in quo) on 17th May 2024 at which the parties agreed the disputed land was LR. 395/II/MN and not LR. 394/II/MN, framed four issues. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the authorities restricting review to discovery of new matter, error apparent on the record, or analogous sufficient reasons, the court found the application did not meet any ground; it noted the sub judice issue had already been determined in its ruling of 2nd March 2022, held the prayer on the withdrawal of ELC No. 24 of 2018 premature since that file was not before it, and found that determining issues in another suit whose parties were absent and unserved would be prejudicial. The application was dismissed entirely with costs to the plaintiffs and the 2nd to 23rd defendants, and directions were given for a pre-trial conference on 9th October 2024 and hearing on 10th December 2024.

Key legal issues

#
01

Whether the ex-parte order of 31st May 2023 should be reviewed and set aside

Holding

The application failed: no new and important matter, no error apparent on the face of the record, and no sufficient reason analogous to the statutory grounds was demonstrated; the sub judice question was already settled in the ruling of 2nd March 2022.

Reasoning

The court reviewed Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the authorities limiting review to three grounds. It held the application could not satisfy the discovery-of-new-matter ground nor the 'any other sufficient reason' ground, which must be analogous to the specified grounds. The effect of allowing it would render another suit sub judice, and the site visit showed the two suits concerned different parcels. The sub judice issue had already been disposed of in the ruling of 2nd March 2022.

p. 14
02

Whether the court could set aside the ex parte orders for withdrawal of ELC No. 24 of 2018

Holding

The prayer failed as premature; the issues surrounding the withdrawal should be interrogated at full trial.

Reasoning

The court discussed Order 25 on withdrawal of suits and accepted that the plaintiffs said they were not parties to ELC No. 24 of 2018. It held it could not examine documents from a matter not available before it, and that questions about the advocate's conduct in withdrawing the suit bordered on matters for trial where oral and documentary evidence could be examined.

p. 16
03

Whether the Ruling of 28th July 2022 should be reinstated

Holding

Unmerited; the preliminary objection on sub judice had already been dismissed on 2nd March 2022, and parties to the other suit were not before or served with this application.

Reasoning

The court found no indication that ELC No. 24 of 2018 was sub judice, and the sub judice/res judicata objection had been dismissed in the 2nd March 2022 ruling. Determining issues in another suit where all parties were absent and not served would be prejudicial to them.

p. 17
04

Costs of the application

Holding

Costs follow the event; the applicants were to pay the plaintiffs and the 2nd to 23rd defendants.

Reasoning

The court applied Section 27 of the Civil Procedure Act and the principle that costs follow the event unless the court for good reason orders otherwise, citing Mulla and Kuloba, and Morgan Air Cargo Ltd v Everest Enterprises Ltd on the discretionary nature of the award.

Legal principles established

#
  • Review under Section 80 and Order 45 Rule 1 is restricted to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay
  • 'Any other sufficient reason' for review must be analogous to the grounds specified in Order 45 Rule 1
  • Costs follow the event subject to the court's discretion under Section 27 of the Civil Procedure Act

Court orders

#
  1. 1.The Notice of Motion application dated 13th March, 2024 be and is hereby found to lack merit and the same is dismissed entirely
  2. 2.Mention on 9th October, 2024 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010, with hearing on 10th December, 2024
  3. 3.Costs of the Notice of Motion dated 13th March, 2024 borne by the 1st Defendant/Applicant and awarded to the Plaintiffs/Respondents and the 2nd to the 23rd Defendants/Respondents

Authorities

#

Legislation

  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A, 6, 7, 27, 63, 80, 99, 107
  • Civil Procedure Rules, 2010Order 8 Rule 5; Order 11; Order 25; Order 45 Rules 1 and 2; Order 51 Rule 1
  • Environment and Land Court ActSection 3(1)
  • Constitution of Kenya, 2010Articles 25(c), 50(1) and (2), 159(2)(d)
  • Evidence ActSection 107

Cases cited (12)

  • Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling)
  • Atlantic States Legal Foundation Inc v Koch Refining Co 681 F Supp 609, 615 (D Minn 1988)
    681 F Supp 609
  • Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR
    [2018] eKLR
  • Pancras T. Swai v Kenya Breweries Limited [2014] eKLR
    [2014] eKLR
  • Sarder Mohamed v Charan Singh Nand Sing and Another (1959) EA 793
    (1959) EA 793
  • Ajit Kumar Rath v State of Orisa & Others, 9 Supreme Court Cases 596
    9 Supreme Court Cases 596 at Page 608
  • Tokesi Mambili and others v Simion Litsanga
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, JR Misc. Application No. 317 of 2018
    [2019] eKLR
  • Evan Bwire v Andrew Aginda Civil Appeal No. 147 of 2006
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR
    (2016) eKLR
  • Beijing Industrial Designing & Research Institute v Lagoon Development Ltd (2015) eKLR
    (2015) eKLR
  • Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Cap. 21; Order 45 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mramba & 45 others v St Elizabeth Academy - Karen Limited & 2 others (Enviromental and Land Originating Summons 67 of 2020) [2024] KEELC 5728 (KLR)", Case Analysis (2024). ELC Case No. 67 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5728/eng@2024-07-22

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