Thistle Limited, Formerly t/a Sai Rock Beach Hotel v Chief Magistrate, Mombasa; Kombe (Interested Party) (Civil Appeal E052 of 2023) [2026] KECA 40 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Thistle Limited's attempt to quash a court judgment because it missed required filing steps and proved no unfairness.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether in a Judicial review application the Judgment or order was necessary for grant of prerogative orders, and whether they were made available to the court
- 2.whether a notice for delivery of the Judgment was issued by the trial Magistrate
- 3.whether different standards of proof were applied to the Appellant, the Respondent and the Interested Party
- 4.whether in failing to comply with Order 2 rule 1 and 3 the Appellant proved illegality, irrationality or procedural impropriety in delivery of the Judgment by the trial Magistrate
- 5.whether the Appellant established the elements of legality, irrationality or procedural impropriety to justify the reliefs sought
Key legal issues
#Requirement to lodge the impugned decision for certiorari
The judicial review application was incompetent because the Appellant did not lodge the decree or certificate of costs verified by affidavit as required by Order 53 Rule 7.
Order 53 Rule 7 precludes an applicant from questioning the validity of any order or record unless a copy verified by affidavit is lodged before hearing, or the failure is accounted for. Judicial review examines the process, so the impugned decision itself must be before the court. The Appellant's position that no judgment existed was contradicted by the judgment annexed to the Interested Party's replying affidavit.
Whether notice of delivery of judgment was issued
The Court reversed the learned Judge's finding: no notice of the delivery date was issued to either party.
Both parties' pleadings showed they were absent at delivery and learnt of it afterwards; had notice been given, nothing would have been easier than to produce it. The direction to 'check every Friday' was not substantiated by the record as a formal notice. The learned Judge therefore misdirected himself on this point.
Consequences of failure to give notice of judgment delivery under Order 21 Rules 1 and 3
The omission is a procedural lapse not rendering the judgment a nullity, since the rule prescribes no sanction and caused no prejudice.
Order 21 Rules 1 and 3 were largely complied with (pronouncement during Covid-19 restrictions, signing and dating at delivery). The provision is silent on consequences of non-compliance. Where the trial itself was fair, submissions were filed, and appeal/review remedies remained open, Article 159 permits the court to decline to nullify an otherwise valid judgment.
Scope of judicial review
Judicial review targets the decision-making process (illegality, irrationality, procedural impropriety), not the merits; grievances about the correctness of a judgment belong on appeal.
Following Biren Amritlal Shah, Municipal Council of Mombasa and Pastoli, the court restated that review examines whether the decision-maker had jurisdiction, heard those affected, and considered relevant matters. The Appellant was fully heard at trial; its complaint was only lack of notice of the delivery date, which did not amount to denial of a fair hearing.
First appellate duty
As a first appellate court, the Court re-evaluated the record and drew its own conclusions, per Selle v Associated Motor Boat Co.
The court applied the settled principles that a first appeal is by way of retrial, requiring reconsideration and evaluation of the evidence while allowing for the trial court's advantage in seeing witnesses; it will not lightly differ from findings of fact unless based on no evidence or wrong principles.
Legal principles established
#- An applicant for certiorari must lodge a copy of the impugned order/record verified by affidavit before hearing, or account for the failure to do so; without the impugned decision there is no decision for the court to quash.
- Where a procedural rule specifies no sanction for non-compliance, whether the judgment should be nullified depends on the circumstances and judicial discretion, not automatic nullity.
- Failure to give notice of delivery of judgment, where the trial was itself fair and unblemished, is a procedural lapse that does not justify nullification, particularly under Article 159.
- Judicial review concerns the decision-making process, not the merits of the decision.
Court orders
#- 1.The Notice affirming the decision dated 12th May 2025 filed by the 1st Respondent was marked as withdrawn with no objection
- 2.The appeal is dismissed
- 3.The Judgment of the Employment and Labour Relations Court at Mombasa dated 1st April 2022 dismissing the Appellant's judicial review application is upheld, with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Judicial Review Cause No. E008 of 2021
- Jurisdiction invoked
- First appeal from the ELRC in exercise of its supervisory/judicial review jurisdiction over the Chief Magistrate's Court (ELRC Act; appeal as of right from the ELRC sitting as a first-instance judicial review court)
Relief refused
#Certiorari to quash the judgment of 9th July 2021, decree and certificate of costs
Appellant failed to prove illegality, irrationality or procedural impropriety; failure to issue notice of delivery was a procedural lapse not going to the root of the proceedings
Prohibition restraining the Chief Magistrate from executing the judgment, decree and certificate of costs
Same failure of proof; alternative remedies of appeal or review were available
Costs
Costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As a consequence, the Judicial Review application was incompetent and ought to have been struck out in the first instance.
we find that the learned Judge misdirected himself in concluding that the parties were notified of the delivery of the Judgment, when they were not, and we so find.
the failure to issue the notice for delivery was a procedural lapse that did not go to the root or core of the parties' dispute or the proceedings so as to affect the outcome of the Judgment one way or the other, or so as to constitute a viable reason to nullify or quash the trial magistrate's Judgment
In point of fact, it is in instances of minor infractions such as this that Article 159 of the Constitution, which mandates courts to administer justice without undue regard to procedural technicalities, can be invoked to circumvent nullification of an otherwise valid and enforceable decision, all in the interest of justice.
Accordingly, we uphold the Judgment of the Employment and Labour Relations Court at Mombasa dated 1st April 2022 that rightly dismissed the Appellant's Judicial review application dated 15th October 2021 with costs to the respondent.
Issues in the judgment
#Judgment refers to non-compliance with 'Order 2 rule 1 and 3' in framing the issues but the analysis is directed at Order 21 Rules 1 and 3 of the Civil Procedure Rules
The Court first finds no notice of delivery was issued and that the Judge misdirected himself on that point, yet still affirms the dismissal of the judicial review application on the same grounds the Judge relied on
Inconsistent references to the suit number - 'CMCC No. 119 of 2018' versus 'CMELRC No. 119 of 2018'
The judgment states the Interested Party stated 'he learnt of its delivery on 11th June 2021' although the judgment was delivered on 9th July 2021, apparently an error for 11th August 2021
The 1st Respondent's Notice is described as affirming 'the decision of the Employment and Labour Relations Court dated 12th May 2025', while the decision upheld is dated 1st April 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thistle Limited, Formerly t/a Sai Rock Beach Hotel v Chief Magistrate, Mombasa; Kombe (Interested Party) (Civil Appeal E052 of 2023) [2026] KECA 40 (KLR)", Case Analysis (2026). Court of Appeal at Mombasa (first appeal against JRCA No. E008 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/40/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.