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ELCDismissedNot stated in judgment text provided· [2025] KEELC 5798 (KLR)

Ola Energy Kenya Limited v Nyiro & 5 others (Environment and Land Appeal 33 of 2023) [2025] KEELC 5798 (KLR)

High Court of Kenya
31 July 2025
2,229 words in judgment
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The bottom line

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A Kenyan company that lost its environmental appeal could not get the judgment reviewed because review is only for obvious errors, not disagreements with the decision.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 14.10.2024 in which the appellant sought review, variation or setting aside of a judgment of the High Court (Matheka J, dated 24.07.2024) that dismissed its appeal against a National Environment Tribunal decision. The Tribunal had allowed the respondents' appeal against NEMA's decision to revoke the appellant's EIA licence, holding that a fresh ESIA study report was required before NEMA could legitimately issue a licence. The appellant filed the review alleging errors apparent on the face of the record, contending inter alia that public participation had occurred and that its mounded sphere vessel storage infrastructure required no additional precautions. The respondents raised a preliminary objection that the appellant, having filed a notice of appeal, could not pursue review, and argued the application was a disguised appeal on the merits. The court held that the withdrawal of the notice of appeal under Rule 83(1) of the Court of Appeal Rules meant no appeal was pending and the application was competent. However, applying the Multichoice Kenya definition of an error apparent on the face of the record, the court found no such error: the alleged misapprehensions of fact and law could only be corrected on appeal, not review, as review would amount to the court sitting on appeal over its own or a coordinate judge's decision. The motion was dismissed with costs to the 1st to 5th respondents, costs following the event under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the application was incompetent given the earlier notice of appeal

Holding

Not incompetent; the notice of appeal was withdrawn, so no appeal barred the review application

Reasoning

The respondents argued that filing a notice of appeal precluded a review. The court held that since the notice of appeal was withdrawn under Rule 83(1) of the Court of Appeal Rules and no memorandum or record of appeal was filed, no appeal was pending and the review application did not contravene Order 45 rule 1.

p. 3
02

Whether an error apparent on the face of the record existed justifying review

Holding

No; the alleged misapprehensions of fact and law were matters for appeal, not review

Reasoning

The court adopted the Multichoice Kenya definition of an error apparent on the face of the record - one evident per se, not requiring detailed examination. The appellant's elaborate arguments showed it was merely aggrieved by the merits. Errors such as alleged misapprehension of public participation or of the storage vessel nature cannot be corrected on review without the court sitting on appeal over its own or a coordinate judge's decision.

p. 5
03

Costs of the application

Holding

Costs to the 1st to 5th respondents, following the event

Reasoning

Applying Section 27 of the Civil Procedure Act and the Hussein Janmohamed principle that a successful party should ordinarily be awarded costs unless good reason exists, the court awarded costs to the respondents.

p. 5

Legal principles established

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  • Having withdrawn a notice of appeal under Rule 83(1) of the Court of Appeal Rules, a party is not precluded from seeking review since no appeal is pending
  • A court cannot, in a review application, reconsider the merits of its own judgment or that of a coordinate court; review is not a disguised appeal
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The appellant's notice of motion dated 14.10.2024 is hereby dismissed.
  2. 2.The 1st to 5th respondents are awarded costs of the application to be borne by the appellants.

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rules 1, 2 and 3
  • Constitution of Kenya 2010Articles 50, 60, 69 and 165(b)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 80 and 27
  • Court of Appeal RulesRules 83(1) and 84
  • Environmental Management and Co-ordination Act (EMCA)Section 63

Cases cited (2)

  • Multichoice Kenya) Ltd vs Mwarandu Group (Kenya) Ltd & 2 others
    [2000] eKLR
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 45 rules 1, 2 and 3 of the Civil Procedure Rules, Articles 50, 60, 69 and 165(b) of the Constitution 2010, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act

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, "Ola Energy Kenya Limited v Nyiro & 5 others (Environment and Land Appeal 33 of 2023) [2025] KEELC 5798 (KLR)", Case Analysis (2025). Not stated in judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5798/eng@2025-07-31

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