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ELCDismissedNot stated in the judgment (related suit: ELC No E021 of 2021, Kwale)

Olang v County Government of Kwale & 3 others (Environment & Land Case 165 of 2021) [2024] KEELC 7092 (KLR)

Environment and Land Court
28 October 2024
2,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to review its earlier decision, confirming that disagreements with a ruling must go to appeal, not review.

What this practically means

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Executive summary

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The 4th Defendant, through a Notice of Motion dated 30/4/2024 supported by Joseph Muchai, sought review of the court's ruling of 31/7/2023 so as to set aside and vary the dismissal of its preliminary objection dated 27/4/2022, which had challenged the court's jurisdiction on the basis that disputes over electricity connection and wayleaves should first go to the Energy & Petroleum Regulatory Authority or Tribunal, citing the Court of Appeal decision in Nicholas Abidha v Attorney General. The plaintiff, Margaret Akoth Olang, opposed, asserting the objection had in fact been dismissed, that a clerical date error was correctable under Sections 99 and 100 of the Civil Procedure Act, and that the differing outcome in Kwale ELC No E021 of 2021 was not a ground for review. The court acknowledged a typographical error in the date of the preliminary objection, correctable under Sections 99 and 100, and held the objection was substantively determined. It reaffirmed that the gist of the suit is the failure to compensate the plaintiff for compulsory acquisition of her land, a matter within the court's jurisdiction under Section 13 of the Environment and Land Court Act. Relying on Order 45 Rule 1 and the Pancras T. Swai authority, the court held there was no new evidence nor any error apparent on the face of the record, and that re-examining its jurisdictional finding would amount to sitting on appeal over its own decision while functus officio. The application was dismissed with costs to the plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court's ruling of 31/7/2023 failed to determine the 4th Defendant's preliminary objection dated 27/4/2022, warranting review
  2. 2.Whether the applicant met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
  3. 3.Whether the court can re-evaluate its own jurisdictional findings on review

Key legal issues

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01

Whether the alleged non-determination of the preliminary objection constitutes an error apparent on the face of the record

Holding

No - the court corrected the date error as clerical under Sections 99 and 100 of the Civil Procedure Act and found the substantive objection was determined in the ruling

Reasoning

The court acknowledged a typographical error in the date of the preliminary objection but held it was a clerical mistake correctable under Sections 99 and 100. Substantively, the court had already decided the objection: it found the gist of the suit was compensation for compulsory acquisition, a matter within ELC jurisdiction under Section 13 of the ELC Act. Thus no error apparent on the face of the record justified review.

p. 3
02

Whether the differing outcome in Kwale ELC No E021 of 2021 is a ground for review

Holding

No - the court is functus officio in that matter and declined to juxtapose findings across the two cases

Reasoning

The applicant relied on the court's later ruling upholding a similar preliminary objection in a related suit. The court held it was not its duty to compare findings across matters, that it is functus officio in the other suit, and that the subject matters differed - the present suit's gist was compensation for compulsory acquisition of land, within the court's jurisdiction under Section 13 of the Environment and Land Court Act.

p. 4
03

Whether alleged incorrect application of the law on jurisdiction can found review

Holding

No - that is a ground of appeal, not review; re-evaluating jurisdiction would amount to the court sitting on appeal over its own decision

Reasoning

The applicant's real complaint was that the court wrongly found it had jurisdiction. The court held that examining whether it applied itself correctly on jurisdiction would require re-evaluating evidence, akin to sitting on appeal over its own decision, which the law does not permit. It adopted the Pancras T. Swai principle that faulting a decision on a point of law is a ground for appeal, not review.

p. 4

Legal principles established

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  • An allegation that a court misapplied the law is a ground of appeal, not a ground for review; review cannot be used to attack a decision where the court is functus officio and has no appellate jurisdiction
  • A review applicant must demonstrate discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, without unreasonable delay

Court orders

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  1. 1.The Notice of Motion dated 30/4/2024 fails and is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, Section 13; Civil Procedure Act Section 80 and Order 45 Rule 1 Civil Procedure Rules 2010 (review jurisdiction)

Relief refused

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Review of the ruling dated 31/7/2023 to set aside/vary the dismissal of the 4th Defendant's preliminary objection dated 27/4/2022

No new and important matter, no error apparent on the face of the record, and seeking review on alleged legal error would amount to the court sitting on appeal over its own decision

p. 4

Costs

The Plaintiff will have the costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the Notice of Motion dated 30/4/2024 hereby fails. The Plaintifi will have the costs of the application.
p. 5Final orders - application dismissed with costs
the 4th Defendant/Applicant has not met the threshold for orders of review sought
p. 4Failure to meet review threshold
The issue of whether the court has applied itself correctly on the issue of jurisdiction will automatically lead this court into re-evaluating the evidence placed before it and which is akin to sitting on appeal of its own decision
p. 4Review cannot be used to re-litigate legal error
Clerical or arithmetical mistakes in judgements, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties
p. 2Section 99 Civil Procedure Act - correction of clerical errors

Issues in the judgment

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minor

The applicant's grounds cite the preliminary objection as dated 22/4/2022 and 27/4/2022 inconsistently; the court itself corrected the date as a typographical error

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, "Olang v County Government of Kwale & 3 others (Environment & Land Case 165 of 2021) [2024] KEELC 7092 (KLR)", Case Analysis (2024). Not stated in the judgment (related suit: ELC No E021 of 2021, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7092/eng@2024-10-28

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