Mwarandu & 2 others v Doshi & 2 others (Enviromental and Land Originating Summons 183 of 2009) [2024] KEELC 6925 (KLR)

The court restated the Mukisa Biscuits and Nitin Properties tests: a preliminary objection must raise a pure point of law, assume the other side's pleaded facts are correct, and not require ascertainment of facts or exercise of discretion. The grounds - that a Notice of Appeal had been filed and not withdrawn and that review was consequently barred - required no factual inquiry, so the objection qualified as a proper preliminary objection on points of law.

Relying on Serephen Nyasani Menge, V. Chokaa & Co. Advocates and Karani & 47 Others, the court held that review and appeal are not simultaneously available; once an appeal is taken, review is ousted. As no withdrawal of the Notice of Appeal was exhibited, the appeal was 'still in existence and simmering' before the Court of Appeal, and revisiting its own judgment would amount to the court sitting on appeal over its own decision.

Although expressly not necessary to its decision, the court considered the merits and found that the alleged errors (concerning authority of PW1 to represent 142 plaintiffs and DW1's alleged admission of occupation) could not be corrected on review. The defendants' grievances were essentially that the judgment ought to have been in their favour, which is appellate material, not a ground of review under Order 45 Rule 1.

Applying Section 27(1) of the Civil Procedure Act and the authorities on costs, the court held that the successful party is typically entitled to costs absent compelling reasons. Having succeeded on the preliminary objection and defeated the Notice of Motion, the Plaintiffs/Respondents were granted the costs of both.