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ELCDismissed· [2025] KEELC 971 (KLR)

Northern Block Residents Limited & another v NEMA & 2 others (Environment and Planning Judicial Review E001 of 2023) [2025] KEELC 971 (KLR)

High Court of Kenya
27 February 2025
AOA. Omollo
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A developer's bid to overturn quashed building approvals failed because review requires an obvious error in the judgment itself, not new evidence or disagreement.

What this practically means

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Executive summary

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The 3rd Respondent in a judicial review suit filed a notice of motion dated 4th November 2024 seeking review and setting aside of the orders issued on 17th October 2024, which had quashed the notification of approval dated 13th January 2023 permitting change of use and development on LR No. 17/261 (Nairobi Block 218/770) in Kitusuru, and had prohibited further demolitions, renovations or construction works pending a procedurally obtained change of user licence. The 3rd Respondent argued that it had legitimately acquired all approvals, including a NEMA EIA licence, that the Applicants had no substantial grounds for quashing the approval, that the Applicants were guilty of laches, and that there was an error of fact apparent on the face of the record. It also introduced a newspaper cutting evidencing publication of the change of user notice, which had not been part of the evidence at the substantive hearing. The 2nd Ex-Parte Applicant opposed, contending that no specific error on the record was shown, that laches was res judicata and not a ground for review, and that the new evidence was improperly introduced. The court applied Order 45 rule 1(b) of the Civil Procedure Rules and the authorities confirming that an error apparent on the face of the record must be self-evident without travelling beyond the record. It found the newspaper cutting was not part of the evidence before judgment and could not support review, and that the merits-based arguments were grounds of appeal, not review. The motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the new newspaper advertisement evidence introduced by the 3rd Respondent established an error apparent on the face of the record

Holding

No - the newspaper cut-out was not part of the evidence before the court at the time of judgment, so it cannot found a review on the ground of error apparent on the face of the record

Reasoning

The court re-examined the annexures to the replying affidavit opposing the substantive motion and confirmed there was no evidence of publication of the proposed change of user. The newspaper cutting placing the notice of change of user in the Daily Nation was introduced only after judgment, and information not before the court cannot satisfy the review threshold under Order 45.

p. 3
02

Whether the contention that the 3rd Respondent legitimately acquired all approvals is a ground for review

Holding

No - it is a ground of appeal because it questions the merit of the court's finding

Reasoning

The court held that the argument that the Applicant legitimately acquired all approvals and that the 1st and 2nd Respondents did not object goes to the root of the decision and questions the merit of the court's finding. Such matters are properly the subject of an appeal, not a review, since a review may not be used to revisit an erroneous conclusion of law.

p. 4
03

Whether the court could consider heads of review not pleaded in the application

Holding

No - parties are bound by their pleadings, and considering unpleaded heads of review would prejudice the opposing parties

Reasoning

The court declined to consider the other heads of review under Order 45 because they were not pleaded on the face of the application. Doing so would prejudice the Respondents by denying them the opportunity to present submissions on those heads. Parties remain bound by their pleadings.

p. 4

Legal principles established

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  • An error apparent on the face of the record cannot be established by evidence or material that was not before the court when the judgment was delivered
  • A party who challenges the merits of a court's findings is advancing grounds of appeal, not grounds of review

Court orders

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  1. 1.The notice of motion dated 4th November 2024 is dismissed
  2. 2.Each party to meet their own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1(b)
  • Physical and Land Use Planning ActNot specified

Cases cited (2)

  • Republic v Medical Practitioners & Dentists Board & Another & another; MIO1 on behalf of MIO2 (a Minor) & another (Interested Party); Kingángá (Exparte)
    (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR) (Judicial Review)
  • National Bank of Kenya Ltd versus Ndungu Njau
    (1997) eKLR
Jurisdiction invoked
Order 45 rule 1(b) of the Civil Procedure Rules - application for review of the court's own judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Northern Block Residents Limited & another v NEMA & 2 others (Environment and Planning Judicial Review E001 of 2023) [2025] KEELC 971 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/971/eng@2025-02-27

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