Hawala v Dickson (Environment and Land Miscellaneous Application E028 of 2025) [2025] KEELC 7144 (KLR)
The bottom line
#The Environment and Land Court struck down an attempt to overturn a Siaya trial court's decision through review, confirming that appeals—not review—are the remedy for disagreeing with a judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court/ELC could recall and revise the trial court's judgment and ruling on the grounds advanced
No. The grounds asserted (right to be heard, fair trial, defence not considered) are grounds of appeal against the correctness of the decision, not grounds for review under Section 80 and Order 45, and the application was struck out.
The court held that the applicant's grievances went to the merits or correctness of the trial court's judgment, which is the province of an appeal. Review under Section 80 CPA and Order 45 is confined to new and important matter, mistake or error apparent on the face of the record, or other sufficient reason. The applicant further invoked constitutional provisions to circumvent prescribed procedure, and the constitutional avoidance doctrine applied.
Whether constitutional provisions could be invoked to bypass the Civil Procedure Act remedies
No. The court applied the principle of constitutional avoidance, holding that statutory rights are enforced through prescribed procedures and the Constitution should not be engaged where another remedy exists.
Relying on Godfrey Paul Okutoyi, Uhuru Muigai Kenyatta and Communications Commission of Kenya, the court held that rights conferred by statute are not fundamental rights and that courts will not determine a constitutional question where the matter can be decided on another basis. The habit of parties hiding under constitutional provisions to circumvent prescribed rules must be discouraged.
Legal principles established
#- A review is not an appeal in disguise; it is confined to the grounds in Order 45 and a wrong conclusion on law or facts is a ground for appeal, not review.
- Parties should not hide under constitutional provisions to circumvent prescribed applicable rules; where a remedy exists under statute or ordinary procedure, the constitutional question should not be reached (constitutional avoidance).
Court orders
#- 1.The application dated 19th August 2025 is struck out
- 2.Costs granted to the respondent
- Jurisdiction invoked
- Articles 165(6)(7), 162(2) and 159(2) of the Constitution; Section 13 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hawala v Dickson (Environment and Land Miscellaneous Application E028 of 2025) [2025] KEELC 7144 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7144/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.