Morara & 2 others v Koske (Suing as legal representative of the Estate of Michael Kichirchir Bor) & 2 others; Kipleitich (Interested Party) (Environment and Land Case E027 of 2024) [2025] KEELC 8436 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether review could lie on the ground that the applicants were condemned unheard
Review dismissed; the applicants knew of the res judicata and related issues from the pleadings, the replying affidavit, and their counsel's own request to dismiss the preliminary objection
Counsel for the applicants brought the preliminary objection to the court's attention on 26/5/2025, urged it be dismissed, and received the replying affidavit raising res judicata, abuse of process, lis pendens and locus standi. On the authority of Union Insurance v Ramzan Abdul Dhanji, once an opportunity to be heard is given and not utilized, the party cannot complain of denial of hearing. No error apparent on the face of the record exists.
Scope of review jurisdiction
Review is restricted to the grounds in Order 45 Rule 1; a wrong conclusion of law is a ground of appeal, not review
Following Pancras T. Swai v Kenya Breweries, Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, National Bank of Kenya v Ndungu Njau and Nyamogo and Nyamogo v Kogo, the court reiterated that review grounds are narrow and an error apparent on the face of the record must be one requiring no long-drawn process of reasoning; a mere erroneous decision is addressed by appeal.
Fate of the counterclaim after dismissal of the main suit
The counterclaim survives and may proceed, with the defendant to it filing a defence within 7 days
Under Order 7 Rule 3 of the Civil Procedure Rules a counterclaim is independent of the main suit and may proceed even after termination of the main suit. The defendant to the counterclaim must file a defence within 7 days under Order 8 Rule 17(1), (2) and (b).
Legal principles established
#- A court can only review its decision on the grounds enumerated in Order 45 Rule 1 of the Civil Procedure Rules and not otherwise; an erroneous order cannot be corrected in the guise of review
- A party that fails to respond to and specifically address issues pleaded by the opposite party cannot turn around and deny knowledge or notice of the issues
- A counterclaim is independent of the main suit and may proceed even after termination of the main suit
Court orders
#- 1.The application dated 22/7/2025 seeking review is dismissed
- 2.The counterclaim may proceed, being independent of the main suit; a defendant to the counterclaim is to file a defence within 7 days under Order 8 Rule 17(1), (2) and (b)
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morara & 2 others v Koske (Suing as legal representative of the Estate of Michael Kichirchir Bor) & 2 others; Kipleitich (Interested Party) (Environment and Land Case E027 of 2024) [2025] KEELC 8436 (KLR)", Case Analysis (2025). Not stated in judgment (Kitale ELC suit; ruling on application dated 22/7/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8436/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.