Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 6205 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to lift orders halting a Parklands development, ruling the applicants were re-litigating settled issues.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Motion for invoking Civil Procedure Rules in a constitutional petition
The reliance on the Civil Procedure Rules was not erroneous; the Mutunga Rules are silent on the form of review, and procedural technicalities should not defeat constitutional enforcement
The Court held that although a constitutional petition is governed by the Mutunga Rules, Rule 25 grants jurisdiction to discharge, vary or set aside conservatory orders without specifying the form. Where there is a lacuna, the Civil Procedure Rules may apply, supported by Article 159(2)(d) and Rule 3(8). Failure to cite the correct provision is not fatal.
Locus of the 3rd Interested Party to swear the affidavit and company ownership
The question of company directorship, ownership and suit property ownership was deferred to the main Petition
The Court noted serious contentions on the co-existence of Sustainable Development Solutions Limited and Property Sustainability and Services Solution Limited despite the purported name change, touching on ownership of the suit property. Determining these at the application stage would amount to determining the substantive Petition prematurely.
Whether sufficient cause existed to vary, discharge or set aside the conservatory orders
No sufficient cause was established; the claims of misrepresentation sought to re-litigate the earlier Motion, and any error would be a ground of appeal
The Court found that the material relied on was before it when the 25th May 2023 ruling was made; the 2nd and 3rd Interested Parties had filed only a Preliminary Objection, leaving the Petitioners' averments uncontroverted. Claims of misrepresentation were an attempt to have a second bite at the cherry, and dissatisfaction with the Court's conclusion lay in appeal, not review. The application was also filed after unexplained delay of about 25 days.
Legal principles established
#- The phrase 'any other sufficient reason' in Order 45 Rule 1 need not be analogous to the grounds of discovery of new evidence or error apparent on the face of the record
- Where the Mutunga Rules are silent on the form of an application to set aside conservatory orders, recourse may be had to the Civil Procedure Act and Rules
- An erroneous view of evidence or law is a ground of appeal, not a ground for review
Court orders
#- 1.The 2nd and 3rd Interested Parties' Motion dated 19th June 2023 is dismissed with costs
- Jurisdiction invoked
- Article 159 of the Constitution; Section 80 of the Civil Procedure Act; Order 45 Rule 1 Civil Procedure Rules; Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
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-operative Society Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 6205 (KLR)", Case Analysis (2024). Not stated in the extract (Constitutional Petition, Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6205/eng@2024-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.