Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2026] KEELC 2407 (KLR)

Aress & another (Suing in their capacity as residents of phase II Diamond Estate Association) v Kalacha & 9 others (Sued as the officials of Diamond Estate Phase II) (Environment and Land Petition E034 of 2025) [2026] KEELC 2407 (KLR)

Environment and Land Court
24 April 2026
TMT. Murigi
2,187 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a bid to reverse its earlier land injunction, confirming that disagreements with a ruling belong in an appeal, not a review application.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court by T. Murigi J, delivered virtually on 24th April 2026, determines a Notice of Motion dated 27th February 2026 in which the 7th Respondent, through its Director Mohamed Maalim Kulmiye, sought review and setting aside of the court's ruling of 19th February 2026 that had granted interlocutory injunctions restraining the Respondents from developing, constructing, selling, transferring or otherwise dealing with L.R. No. 209/17902 (now Nairobi Block 160/698) and L.R. No. 209/17536/2 (now Nairobi Block 160/938) pending determination of the Petition. The Applicant argued that the Petitioners' claim rested on a superseded subdivision plan, that the Petitioners had no proprietary interest, that the suit properties had been transferred to bona fide third parties, and that the court erred in failing to apply the doctrine of exhaustion of statutory remedies. The Petitioners opposed, contending the grounds were matters for appeal, not review. The court framed one issue: whether the ruling of 19th February 2026 should be reviewed under Section 80 of the Civil Procedure Act and Order 45 Rule 1. Applying Nyamogo & Nyamogo vs Kogo and other authorities, it held that no new evidence was discovered; the complaints about prima facie case, irreparable harm and exhaustion of remedies merely invited reconsideration of the court's discretion, a matter for appeal; and no error apparent on the face of the record or sufficient reason was shown. The application was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the ruling of 19th February 2026 should be reviewed

Holding

The application for review was dismissed; none of the grounds in Section 80 of the Civil Procedure Act and Order 45 Rule 1 was established

Reasoning

The Applicant did not demonstrate discovery of new and important matter that could not have been produced earlier. The complaints that the court erred in finding a prima facie case, irreparable harm, and in rejecting the exhaustion doctrine amount to challenges to the correctness of the exercise of discretion and application of law to facts, which fall within appeal, not review. Alleged errors requiring judicial interpretation are not errors apparent on the face of the record, and no other sufficient reason was shown.

p. 5

Legal principles established

#
  • A review court is not concerned with the correctness of the decision but only with the existence of the specific grounds for review under Order 45 Rule 1; complaints about the manner in which a court exercised its discretion are grounds for appeal, not review
  • An error apparent on the face of the record must be obvious and self-evident; a possible view adopted by the court is not such an error, and a substantive legal argument not raised at the hearing cannot constitute such an error

Court orders

#
  1. 1.The Notice of Motion dated 27th February 2026 seeking review of the ruling of 19th February 2026 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 10, 27, 40, 47, 50, 159
  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Environment and Land Court ActSection 13

Cases cited (5)

  • Benjoh Amalgamated Limited & Another Vs Kenya Commercial Bank Limited
    (2014) eKLR
  • Republic vs Public Procurement Administrative Review Board & 2 Others
    (2018) eKLR
  • Nyamogo & Nyamogo vs Kogo
    (2001) EA 170
  • Timber Manufacturers and Dealers vs Nairobi Golf Hotels
    HCCC No. 5220 of 1992
  • The Official Receiver and Liquidator Vs Freight Forwarders Kenya Ltd
    (2000) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Aress & another (Suing in their capacity as residents of phase II Diamond Estate Association) v Kalacha & 9 others (Sued as the officials of Diamond Estate Phase II) (Environment and Land Petition E034 of 2025) [2026] KEELC 2407 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2407/eng@2026-04-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.