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ELCDismissedNotice of Motion dated 28/1/2025 (arising from Civil Appeal No. 67 of 2016 / contempt proceedings)· [2025] KEELC 4786 (KLR)

Watamu Men Fridays Limited v Attorney General & 4 others (Environment & Land Case 104 & 4 of 2019 (Consolidated)) [2025] KEELC 4786 (KLR)

Environment and Land Court
26 June 2025
3,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) on a Notice of Motion dated 28 January 2025 by Roberto Lenzi seeking review, variation and/or setting aside of the Court's ruling and orders of 18 December 2024, in which he had been cited for contempt. The applicant argued, through his affidavit and a further affidavit, that his conduct was an earnest attempt to comply with orders in Civil Appeal No. 67 of 2016 directing rectification of title to apportion Plot 103 from Kilifi/Jimba/1125, and that the impugned ruling contained an error apparent on the face of the record because it failed to consider the appellate order. The Plaintiffs in ELC No. 4 of 2019 and ELC No. 104 of 2019 opposed, contending the grounds were known during the contempt proceedings, that the application was a disguised appeal filed after a notice of appeal, and that it was an abuse of process. The Court framed two issues: whether the filing of a notice of appeal ousts its review jurisdiction, and whether the ruling should be reviewed. Reconciling conflicting Court of Appeal authority (Kisya Investments and Yani Haryanto), the Court held that a notice of appeal does not constitute an appeal until the record of appeal is lodged, and so review jurisdiction was retained. On the merits, however, the Court found the impugned ruling had considered the appellate order (albeit citing Civil Appeal No. 81 of 2016) and that no error apparent on the face of the record was demonstrated; the application was a disguised appeal. The application was dismissed with costs to the Respondents, with a mention set for 26 October 2025.

Key legal issues

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01

Jurisdiction to entertain review where a Notice of Appeal has been filed

Holding

The mere filing of a notice of appeal does not bar an application for review; the appeal is only instituted upon lodging the record of appeal, fees and security. Since the applicant had taken no further step, the review application was properly before the Court.

Reasoning

The Court considered the conflicting Court of Appeal decisions in Kisya Investments and Yani Haryanto and preferred Yani Haryanto, holding that a notice of appeal is merely a notification of intention and a jurisdictional gateway, not an instituted appeal. Absent evidence of prosecution of the intended appeal, the High Court retains jurisdiction to hear the review.

p. 6
02

Whether the impugned ruling of 18/12/2024 should be reviewed and set aside for error apparent on the face of the record

Holding

No. The Court had in fact considered the Court of Appeal's order, and the applicant's complaints were matters for appeal, not review.

Reasoning

The applicant alleged the Court ignored the order in Civil Appeal No. 67 of 2016 directing rectification of title to Plot 103. On perusal, the impugned ruling had noted the issue, albeit by reference to Civil Appeal No. 81 of 2016. The substance was considered, so no self-evident error was demonstrated; the issues belonged on appeal, making the application a disguised appeal.

p. 6

Legal principles established

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  • A notice of appeal does not in itself constitute an appeal; until the appeal is formally instituted by filing the record of appeal, the High Court retains jurisdiction to entertain an application for review
  • A party cannot simultaneously pursue both an appeal and a review of the same decision; the two remedies are mutually exclusive
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a court cannot sit on appeal over its own decision by way of review

Court orders

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  1. 1.The application dated 28/1/2025 is dismissed with costs to the Respondents
  2. 2.The matter shall be mentioned on 26th October 2025 for further directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 25(d), 47, 48, 50, 159(2)(d)
  • Fair Administrative Action ActSection 4(1) and (2)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 80, 89
  • Civil Procedure RulesOrder 45 Rule 1; Order 41 Rule 4(1)

Cases cited (6)

  • Kisya Investments Ltd -v- Attorney General and Another
    Civil Appeal No. 31 of 1995
  • Yani Haryanto -v- E. D. & F. Man. (Sugar) Limited
    Civil Appeal No. 122 of 1992 (Unreported)
  • Motel Scwetzer v Thomas Cunningham & Another
    (1955) 22 EACA 252
  • Mbugua alias George Boniface Nyanja v Iqbal (Personal representative of the Estate of the Late Ghulam Rasool Jammohamed)
    (Miscellaneous Application 7 (E011) of 2021) [2021] KESC 41 (KLR)
  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others
    Application 16 of 2014, [2014] eKLR
  • National Bank of Kenya -v- Ndungu Njau
    [1997] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules; Articles 10, 25(d), 47, 48, 50 & 159(2)(d) of the Constitution

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, "Watamu Men Fridays Limited v Attorney General & 4 others (Environment & Land Case 104 & 4 of 2019 (Consolidated)) [2025] KEELC 4786 (KLR)", Case Analysis (2025). Notice of Motion dated 28/1/2025 (arising from Civil Appeal No. 67 of 2016 / contempt proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4786/eng@2025-06-26

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