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ELCPartially AllowedEnvironment and Land Constitutional Petition (Mombasa) - Notice of Motion dated 28th November, 2024· [2025] KEELC 5650 (KLR)

Mwanthi (Suing On Behalf of Himself and on Behalf of the 850 Members of the Mtongwe Beach Management Unit Members) v Kenya Ports Authority & 3 others (Environment and Land Petition E011 of 2024) [2025] KEELC 5650 (KLR)

Environment and Land Court
28 July 2025
3,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Mombasa court agreed it made a mistake when it paused the Mtongwe fishermen's compensation case, cancelling its earlier orders and reopening the matter.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Mombasa (L. L. Naikuni, J) determines a Notice of Motion dated 28th November 2024 by Fredrick Kioko Mwanthi, suing for himself and 850 members of the Mtongwe Beach Management Unit, seeking review of the court's ruling of 24th October 2024, which had allowed a preliminary objection by the 3rd Respondent and stayed the petition as sub judice to HCCC No. E013 of 2024, simultaneously vacating interim orders restraining disbursement of compensation funds under the Dongo Kundu project. The application was brought under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, on the ground of error apparent on the face of the record - principally that the court had wrongly stated no response was filed to the preliminary objection when the petitioners' submissions had been filed on the CTS on 1st July 2024, before the 3rd Respondent's own submissions. The court outlined the law on review, stressing that review is not an appeal and is confined to errors apparent on the face of the record, citing among others Republic v Public Procurement Administrative Review Board and its own earlier decision in Sese v Karezi. The court framed two issues: whether the application was merited and who should bear costs. It concluded the application met the legal threshold for review, allowed prayer (a), reviewed and set aside the orders of 24th October 2024, made all other prayers subject to the forthcoming reviewed ruling, and directed that there be no orders as to costs. Judgment was delivered virtually at Mombasa on 28th July 2025.

Key legal issues

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01

Whether the ruling of 24th October 2024 contained an error apparent on the face of the record justifying review

Holding

The court found the application merited as regards prayer (a) and set aside the orders of 24th October 2024 on the basis of apparent errors on the face of the record

Reasoning

The court set out the review framework under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, noting that review requires an error apparent on the face of the record and is not an appeal. The applicant contended that the court erred in holding there was no response to the preliminary objection when submissions had in fact been filed on the CTS before the 3rd Respondent filed its own. Despite emphasising that re-appraisal of evidence is beyond review, the court concluded the application met the legal threshold and allowed prayer (a).

p. 8
02

Who bears the costs of the application

Holding

No orders as to costs were made

Reasoning

The court reiterated that costs are discretionary and follow the event under Section 27(1) of the Civil Procedure Act, but in this case reserved the onus of not awarding costs, ultimately directing that there be no orders as to costs.

p. 8

Legal principles established

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  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the restrictive rules and grounds for its exercise
  • Review is confined to error apparent on the face of the record and does not permit re-appraisal of evidence, which would amount to exercising appellate jurisdiction
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court retains discretion over costs

Court orders

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  1. 1.The Notice of Motion application dated 28th November, 2024 be and is hereby found to have merit and the same is allowed with regards to prayer (a) while all the other prayers will be subject to the reviewed ruling in due course
  2. 2.The Honourable Court be and is hereby pleased to review its ruling and set aside the orders issued by the court (Honourable Justice L. L. Naikuni) on 24th October, 2024 based on the apparent errors on the face of the record
  3. 3.All other prayers in the Notice of Motion application dated 28th November, 2024 are subject to the review of the Ruling delivered on 24th October, 2024
  4. 4.There are no orders as to costs
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Mwanthi (Suing On Behalf of Himself and on Behalf of the 850 Members of the Mtongwe Beach Management Unit Members) v Kenya Ports Authority & 3 others (Environment and Land Petition E011 of 2024) [2025] KEELC 5650 (KLR)", Case Analysis (2025). Environment and Land Constitutional Petition (Mombasa) - Notice of Motion dated 28th November, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5650/eng@2025-07-28

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