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ELCDismissedNot stated in the excerpt (appeal from National Environment Tribunal Case No. NET 12 of 2019)· [2025] KEELC 4199 (KLR)

Orata International Limited v National Environmental Management Authority (Environment and Land Appeal E008 of 2020) [2025] KEELC 4199 (KLR)

Environment and Land Court
22 May 2025
MMM.D. Mwangi
1,574 words in judgment
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The bottom line

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A Kenyan court refused to reopen a factory pollution case, confirming that losing parties must appeal to a higher court rather than ask the same judge to change their mind.

What this practically means

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Executive summary

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The Appellant, a factory operator, filed an amended Notice of Motion dated 11th February 2024 under Order 45 Rule 1 of the Civil Procedure Rules and Sections 1A, 3A and 80 of the Civil Procedure Act seeking review of the Environment and Land Court's judgment of 27th September 2023, which had dismissed its appeal against the National Environment Tribunal's decision upholding the Respondent's restorative environmental orders requiring closure of its facility over dust and noise pollution. The Appellant, through its Director Jacob Iyadi Wambua, argued the court had ignored key grounds of appeal, including that the land lies in a factory zone with many stone-crushing businesses, that it had operated for over 20 years, and that the Respondent produced no report. The Respondent opposed, contending the application duplicated a withdrawn application, that no positive order existed to stay, that the court was functus officio, and that the Applicant had not met the Order 45 threshold. In a ruling delivered at Kajiado on 22nd May 2025, M.D. Mwangi J framed a single issue: whether sufficient grounds existed to justify review. Applying Supreme Court authorities on functus officio and review principles and the Court of Appeal's decision in Daniel Lago Okomo, the court held the application was camouflaged as review but was in substance an appeal against its own judgment; the court was functus officio and the proper remedy lay in the Court of Appeal. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the applicant met the statutory grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The application was dismissed; the court was functus officio and the application was in substance an appeal disguised as review, with the remedy lying in the Court of Appeal.

Reasoning

The court traced the litigation history: restorative orders of 2019, dismissal by the Tribunal in February 2021, and dismissal of the appeal by this court on 27th September 2023. Applying Supreme Court authority on functus officio and review principles, and the Court of Appeal decision in Daniel Lago Okomo, it held that an aggrieved party cannot re-argue its case through review. The applicant failed to demonstrate new evidence, mistake apparent on the face of the record, or sufficient cause.

p. 4

Legal principles established

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  • A court becomes functus officio after delivering judgment and cannot revisit it on the merits save as provided by law
  • Review of a discretionary decision is an equitable remedy, not a second appeal; the applicant must show the court erred or acted whimsically
  • Review judgments are not granted merely because a losing litigant is unhappy

Court orders

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  1. 1.The Appellant's amended Notice of Motion dated 11th February, 2024 is dismissed
  2. 2.Costs of the Application to the Respondent
On appeal from
National Environment Tribunal
NET 12 of 2019
Jurisdiction invoked
Sections 1A, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Orata International Limited v National Environmental Management Authority (Environment and Land Appeal E008 of 2020) [2025] KEELC 4199 (KLR)", Case Analysis (2025). Not stated in the excerpt (appeal from National Environment Tribunal Case No. NET 12 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4199/eng@2025-05-22

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