Shee v Kamau & 2 others (Environment and Land Case 49 of 2021) [2025] KEELC 7918 (KLR)
The bottom line
#The Environment and Land Court in Kwale dismissed a landowner's late attempt to review its own directions, confirming that complaints about court process belong in an appeal, not a review.
What this practically means
#Executive summary
#Key legal issues
#Whether grounds touching compliance with Order 9 Rules 9 and 10 could be re-litigated in the plaintiff's application
No - the issue of whether the firm of Njuguna, Kahari & Kiai Advocates is properly on record was already pending determination under the defendant's application dated 7/10/2024, having been raised in the plaintiff's Notice of Preliminary Objection and Grounds of Opposition dated 15/11/2024 and in the plaintiff's own submissions; the court's hands were tied
The court noted section 6 of the Civil Procedure Act on stay of suit and found the applicant was re-opening arguments already submitted on, beefing them up under the current application. All grounds touching compliance with Order 9 Rules 9 and 10 were issues pending determination under the defendant's pending application and awaited the pending ruling.
Whether the court was barred by Order 45 rule 6 from entertaining the review as argued (functus officio)
No - Order 45 rule 6 bars a review of an order made on an application for review; it applies to the final determination of the substantive review, and the ruling on the application dated 7/10/2024 had not yet been delivered
The court respectfully disagreed with the defendant's interpretation, relying on Jacqueline Mach Damon & Mawe Mbili Limited, where the applicant sought to review what the court had already declined to review in an earlier application. Here the substantive review application remained undetermined, so the rule was not attracted.
Whether the plaintiff demonstrated error apparent on the face of the record or sufficient reason to review the directions of 9th October 2024
No - the grounds raised (that the judge erred on process, ought not to have advised a party, and that the application ought to have been served first) were grounds for appeal, not review; the correct forum was an appeal; and the application was filed some 7 months later without reasonable explanation
The court reviewed section 80 of the Civil Procedure Act and Order 45 rule 1 and found the applicant's grounds did not meet the review threshold. The court cannot sit on appeal over its own process. Further, the delay from 9/10/2024 to 10/06/2025 was unreasonable and unexplained.
Whether the further affidavit dated 10/6/2025 should replace the expunged supplementary affidavit of 9th December 2024
No - the further affidavit appeared to be the very affidavit supporting the present application, there was no credible evidence that counsel was unaware of the 11th December 2024 expungement order, and the application dated 7/10/2024 had since been argued
The court found the further affidavit's depositions were raised in support of the present application, disturbing if not mischievous, and that it might mean the application was filed without a supporting affidavit. The claim that the advocate's firm was closed from 15/12/2024 was unsupported, as directions were issued in the CTS on 2024-12-11, before that date.
Legal principles established
#- The bar in Order 45 rule 6 against subsequent review applications applies to the final determination on the substantive application for review, not to interim directions given during the pendency of a review application
- A court cannot sit on appeal over its own impugned process; grievances that a judge erred in process are grounds for appeal, not review
- An application for review must be filed without unreasonable delay, and unexplained delay of some months is unreasonable
Court orders
#- 1.The plaintiff's Notice of Motion application dated 10/06/2025 is dismissed
- 2.Costs of the application awarded to the defendant
- 3.The orders sought in the application dated 15/07/2025 noted as largely spent and not belaboured
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court; Civil Procedure Act, section 80 and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shee v Kamau & 2 others (Environment and Land Case 49 of 2021) [2025] KEELC 7918 (KLR)", Case Analysis (2025). Not stated in judgment (ELC, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7918/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.