Ola Energy Kenya Limited v Nyiro & 5 others (Environment and Land Appeal 33 of 2023) [2025] KEELC 5798 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application was incompetent given the earlier notice of appeal
Not incompetent; the notice of appeal was withdrawn, so no appeal barred the review application
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 The court held that since the notice of appeal was withdrawn under Rule 83(1) of the Court of Appeal Rules and no memorandum or record of appeal was filed, no appeal was pending and the review application did not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.
Whether an error apparent on the face of the record existed justifying review
No; the alleged misapprehensions of fact and law were matters for appeal, not review
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.
Costs of the application
Costs to the 1st to 5th respondents, following the event
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.
Legal principles established
#- Having withdrawn a notice of appeal under Rule 83(1) of the Court of Appeal Rules, a party is not precluded from seeking review since no appeal is pending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
#- 1.The appellant's notice of motion dated 14.10.2024 is hereby dismissed.
- 2.The 1st to 5th respondents are awarded costs of the application to be borne by the appellants.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.