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ELCDismissedNot stated in judgment (Kitale ELC suit; ruling on application dated 22/7/2025)· [2025] KEELC 8436 (KLR)

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)

Environment and Land Court
3 December 2025
2,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants sought review, under an application dated 22/7/2025, of orders made on 16/7/2025 dismissing their suit following a preliminary objection on res judicata premised on Kitale ELC No. 76 of 2018. They contended the preliminary objection was never served, no directions were given for its hearing, and they were condemned unheard while only anticipating a ruling on their contempt application dated 14/5/2025. The respondents opposed, arguing no ground of review was disclosed. The court traced the proceedings of 15/5/2025 and 26/5/2025, noting that the applicants' own counsel acknowledged the preliminary objection, received the grounds of opposition and replying affidavit, filed submissions, and urged the court to dismiss the preliminary objection. The court held that the res judicata issue was amply pleaded in the defence, counterclaim, replying affidavit and the applicants' own supporting affidavit annexing the Kitale ELC No. 76 of 2018 decree, so the applicants could not claim ignorance of the issues. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and authorities including Ex parte Apollo Mboya, National Bank of Kenya v Ndungu Njau and Nyamogo and Nyamogo v Kogo, the court found no error apparent on the face of the record; a wrong decision is a ground of appeal, not review. The application was dismissed. However, the court held that the defendants' counterclaim, being independent of the main suit under Order 7 Rule 3, may proceed, with the defendants to the counterclaim to file a defence within 7 days under Order 8 Rule 17.

Key legal issues

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01

Whether review could lie on the ground that the applicants were condemned unheard

Holding

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

Reasoning

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.

p. 4
02

Scope of review jurisdiction

Holding

Review is restricted to the grounds in Order 45 Rule 1; a wrong conclusion of law is a ground of appeal, not review

Reasoning

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.

p. 3
03

Fate of the counterclaim after dismissal of the main suit

Holding

The counterclaim survives and may proceed, with the defendant to it filing a defence within 7 days

Reasoning

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).

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 22/7/2025 seeking review is dismissed
  2. 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)

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 7 Rule 3
  • Civil Procedure RulesOrder 8 Rule 17(1), (2) and (b)

Cases cited (12)

  • Pancras T. Swai v Kenya Breweries Ltd
    [2014] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers
    [2016] eKLR
  • National Bank of Kenya v Ndungu Njau
    [1997] KECA 71 [KLR]
  • Nyamogo and Nyamogo Advocate v Kogo
    (2001) EA 170
  • Wareham T/A A.F. Wareham & Others v Kenya Post Office Savings Bank
    [2004] 2 KLR 91
  • Dakianga Distributors v Kenya Seed Co. Ltd
    [2015] eKLR
  • Musila v Thengi & Others
    Civil Appeal 607 of 2019 [2025] KECA 750 [KLR]
  • Union Insurance Co. of (K) Ltd v Ramzan Abdul Dhanji
    Civil Appl. No. Nairobi 779 of 1998
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    [2013] KECA 282 (KLR)
  • Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 others
    [2014] eKLR
  • Catering Concepts Ltd v Castle Brewing (K) Ltd
    Nairobi HC Civil Case No. 744 of 200
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "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.