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ELCDismissedMilimani ELCLC No. E166 of 2025· [2025] KEELC 6794 (KLR)

Nyaku Limited v Office Suites Developers Limited; Gheewala & another (Interested Parties) (Environment and Land Case E166 of 2025) [2025] KEELC 6794 (KLR)

Environment and Land Court
7 October 2025
3,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a company's attempt to overturn earlier orders, confirming that review is not an appeal and missing court deadlines forfeits your chance to object.

What this practically means

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Executive summary

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The plaintiff, Nyaku Ltd, filed a notice of motion dated 8th July 2025 seeking review and stay of execution of orders issued on 3rd July 2025, by which the court had allowed the 1st and 2nd interested parties' applications for joinder as interested parties. The plaintiff contended that it was denied an opportunity to respond and that the 2nd interested party's use of the word 'enjoined' rather than 'joined' constituted an error apparent on the face of the record. It also sought reinstatement of a suit it believed had been struck out. All respondents opposed, arguing the plaintiff had deliberately declined to file responses within court-ordered timelines and that the application was an appeal disguised as review. In a preliminary clarification, the court found that no order striking out the suit had actually been made on 3rd July 2025; only prayers for joinder and participation were granted, so all parties laboured under a mistaken belief that the suit was non-existent. On the merits, the court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the authorities in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya and Muyodi v ICDC, holding that no error apparent on the face of the record existed. The plaintiff's failure to respond stemmed from its counsel's strategic disagreement with a High Court ruling, amounting to a waiver of its right to respond. The notice of motion dated 8th July 2025 was dismissed with costs in the cause.

Key legal issues

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01

Whether an error apparent on the face of the record existed to warrant review of the orders of 3rd July 2025

Holding

No error apparent on the face of the record existed; the applicant's failure to respond was a waiver of its right to oppose, not a mistake by the court

Reasoning

The court restated the law under Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the jurisprudence from Muyodi v ICDC that an error apparent must stare one in the face with no reasonable two opinions. The applicant's contention that the word 'enjoined' differed from 'joined' failed because the 2nd interested party's intent to participate was unequivocal. The applicant's failure to file responses within the 14 days' directions was a deliberate choice grounded on its disagreement with a High Court ruling, not a reviewable error.

p. 8
02

Whether the suit had been struck out and thus required reinstatement

Holding

The court clarified that no order striking out the suit was ever made on 3rd July 2025; all parties laboured under a mistaken belief

Reasoning

The court examined the actual orders issued on 3rd July 2025: prayers 2 and 4 of the 1st interested party's application and prayers 2, 3 and 5 of the 2nd interested party's application were granted. Prayer 3 of the 1st interested party's application, which sought striking out of the suit, was not among the orders granted. All parties therefore argued on a false premise that the suit no longer existed.

p. 6

Legal principles established

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  • Review is not an appeal; it is confined to errors apparent on the face of the record, and a ground of opposition deliberately withheld within court timelines cannot be revived through review
  • The intention of an application must be gathered from a plain reading of its contents; a mislabeled word (enjoined vs joined) does not render the application defective

Court orders

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  1. 1.The notice of motion dated 8th July 2025 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 47(1) and (2), 48, 50(1), 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 80, 63(c)
  • Civil Procedure RulesOrder 12 Rule 7, Order 42 Rule 6(1), Order 45 Rule 1, Order 51 Rule 14

Cases cited (21)

  • National Bank of Kenya Ltd v Ndungu Njau
    Civil Appeal No. 211 of 1996 [eKLR]
  • Paul Mwaniki v National Hospital Insurance Fund Board of Management
    [2020] eKLR
  • Francis Karioko Muruatetu & Another v Republic & 5 Others
    [2016] eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • In re Estate of Barasa Kanenje Manya (deceased)
    (Succession Cause 263 of 2002) [2020] KEHC 1 (KLR)
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    [2014] eKLR
  • Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others
    [2014] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Parliamentary Service Commission v Martin Nyaga Wambora & others
    [2018] eKLR
  • Republic v Cabinet Secretary for Interior and Co-ordination of National Government Ex parte Abulahi Said Said
    [2019] eKLR
  • Gitonga v Njuguna & another
    (Petition E010 of 2024) [2025] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR; [2019] KEHC 6379 (KLR)
  • Sasenyi Multipurpose Co-operatives Society Ltd v Rukinya Ranching Co. Ltd
    (Civil Appeal (Application) E010 of 2022) [2024]
  • Machira T/A Machira & Co. Advocates v East Africa Standard
    [2002] eKLR
  • Gianfranco Manenthi & Another v Africa Merchant Assurance Co. Ltd
    [2019] eKLR
  • Kishor Kumar Dhanji v Ndefio Limited & 4 Others
    [2011] eKLR
  • John Musili Mwandia v Mohamed Sharif Chaudhry
    Nairobi (Milimani) HCCC No. 788 of 1995
  • Muganda v Brookside Dairy Limited & 2 Others
    (Petition E002 of 2025) KEELRC
  • Muyodi vs. Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
  • Mukuta Chandrakhant Gheewala, Mamta Gheewala and Shrikesh Gheewala v Eleshkumar Chandrakant Gheewala and Nyacity Limited
    HCCOMM E075 of 2024
Jurisdiction invoked
Articles 47(1) and (2), 48, 50(1) and 159(2)(d) of the Constitution; Sections 1A, 1B, 3, 3A, 80 and 63(c) of the Civil Procedure Act; Order 12 Rule 7, Order 42 Rule 6(1) and Order 45 Rule 1 of the Civil Procedure Rules

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, "Nyaku Limited v Office Suites Developers Limited; Gheewala & another (Interested Parties) (Environment and Land Case E166 of 2025) [2025] KEELC 6794 (KLR)", Case Analysis (2025). Milimani ELCLC No. E166 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6794/eng@2025-10-07

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