Onyera & 8 others (Suing on their own Behalf and on Behalf of the Residents and Homeowners of the Greenpark Estate) v Superior Homes Kenya Limited & 3 others; Greenpark Estate Management (Gems) Limited (Interested Party) (Environment and Land Petition E007 of 2023) [2026] KEELC 2128 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether failure to consider a return of service constitutes an error apparent on the face of the record
Yes - the court found the omission self-evident and a permissible ground of review
The court had struck out the petition against the 3rd respondent and 1st interested party for non-service, yet a return of service dated 8 April 2025 was on the record. The 1st respondent argued no error existed, but the court held the failure to consider the affidavit of service was self-evident and did not require elaborate reasoning. Nonetheless, on examining the return, the court found service was not substantiated, so the same outcome would result.
Whether failure to attach the impugned order to the review application is fatal
No - where the order is on the court file and the party can point to the impugned part of the ruling, the application is not fatally defective
Following Peter Kirika Githaiga v Betty Rashid, the court held Order 45(1) does not require the order to be annexed; as a court of record the impugned order is accessible, the 1st respondent was present when it was made, and insisting on attachment would contravene the overriding objective in Sections 1A and 1B of the Civil Procedure Act.
Whether the motion was filed after unreasonable delay
Yes - the delay of over 110 days from 11 June 2025 to 2 October 2025 was undue and the explanation for it was deceptive
Counsel for the petitioners was present when the order of 11 June 2025 was made and did not raise the affidavit of service then. The petitioners filed the motion on 2 October 2025, more than 110 days later, only as a hearing date was being scheduled. Their claim that delay was caused by obtaining the order was false, as the record showed they never applied to have the order extracted.
Whether the return of service substantiated service on the 3rd respondent and 1st interested party
No - even considering the return of service, service was not established and the same conclusion as the impugned orders would follow
The service order was issued on 25 March 2025 under Rule 14(1) of the Mutunga Rules, yet the process server claimed to have served on 17 November 2023, before the directions. The alleged email service of 4 and 8 April 2025 was unsupported by any documents. The return was therefore uncorroborated and service was not proved.
Legal principles established
#- An error apparent on the face of the record justifying review must be self-evident and not require elaborate argument
- Failure to attach a formal order or decree to a review application is not fatal where the party can direct the court to the impugned part of the ruling on the court file
- Applications for review must be instituted without unreasonable delay
Court orders
#- 1.Dismissal of the notice of motion dated 1 October 2025
- 2.Costs of the motion to be in the cause
- 3.A hearing date to be issued
- Jurisdiction invoked
- Articles 50(1) and 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rules 1 and 2, Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyera & 8 others (Suing on their own Behalf and on Behalf of the Residents and Homeowners of the Greenpark Estate) v Superior Homes Kenya Limited & 3 others; Greenpark Estate Management (Gems) Limited (Interested Party) (Environment and Land Petition E007 of 2023) [2026] KEELC 2128 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2128/eng@2026-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.