Nyakech v Ayoo (Environment and Land Appeal E025 of 2023) [2025] KEELC 4317 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has met the requirements for the grant of review of the judgment delivered on 31st October 2024
Key legal issues
#Whether the grounds raised justify review under Section 80 and Order 45 Rule 1
The application failed: no new material fact or evidence was presented, no error apparent on the face of the record was shown, and the complaints were substantive grounds of appeal, not review grounds.
The court restated the restricted grounds for review from Khalif Sheikh Adan v Attorney General: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, without unreasonable delay. On the grounds set out, the court found no new information was brought to the court's attention warranting review, and no new material fact had been presented for consideration.
Whether the court may revisit its own judgment on the basis that it erred in dismissing the appeal on technicality
No. The complaint that the appeal was dismissed on technicalities contrary to Article 159(2) is a ground of appeal, and the court cannot sit on appeal over its own judgment; a second appeal to the Court of Appeal remains available.
The applicant was aggrieved by dismissal of his appeal on technicality and invited the court to apply substantive justice principles. The court held this invitation amounted to asking it to change its own view, which is not the purpose of review, especially where no argument was made that a second appeal to the Court of Appeal was unavailable. Review is confined to error apparent on the record, not re-appraisal of evidence or legal interpretation.
Whether costs should follow the event in favour of the respondent
Costs are discretionary and the court declined to award them to the respondent because of his offending language and attack on counsel.
Although the application was dismissed, the court exercised its discretion on costs against the respondent. The respondent had used offending language and unnecessarily attacked counsel on record in his statement and submissions. The court emphasized that courts must be approached with decorum and respect, and accordingly declined to award costs to the respondent.
Legal principles established
#- Review proceedings are not an appeal; re-appraisal of evidence or how the judge applied the law amounts to impermissible appellate jurisdiction.
- A court cannot sit on appeal over its own judgment; an applicant aggrieved by a dismissal on technicality must appeal rather than seek review.
- An error of law on the face of the record for review must be one that stares one in the face and admits of no two opinions.
Court orders
#- 1.The Notice of Motion application dated 26th January 2025 is dismissed
- 2.No costs awarded to the respondent; each party bears own costs in effect
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Cap 21, read with Order 45 Rule 1 of the Civil Procedure Rules, and the Environment and Land Court Act, Section 13, Rule 3.7 and Section 19, and Sections 1A, 1B & 3A of the Civil Procedure Act
Relief refused
#Review of the judgment issued on 31st October 2024
No new and important matter or evidence, no error apparent on the face of the record, and no other sufficient reason established; the application is in substance an appeal against the court's own judgment
Stay of execution of the judgment of 31st October 2024
It was premised on the review application, which was dismissed
Setting aside of the judgment issued on 31st October 2024
The court was merely being invited to change its view, which is not the purpose of review
Costs of the application to the respondent
The respondent used offending language and unnecessarily attacked counsel on record
Costs
Costs of the application declined; the court declined to award costs to the respondent because of his offending language and attack on counsel, so effectively no costs awarded.
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.
The upshot of the foregoing is that the application dated 26th January 2025 must fail and is hereby dismissed.
The above is a ground of appeal and this court cannot seat on appeal of its own judgement.
The court is simply being invited to change its view and which is not the purpose for review.
review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible
An error on the face of the record can only be determined on the facts of each case.
An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh.
This is for the reason that the respondent in his statement and submissions used some offending language and unnecessarily attacked counsel on record.
Issues in the judgment
#The judgment repeats paragraph number 14 and 20, and does not disclose the name or case number of the 1st respondent or the underlying appeal case number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakech v Ayoo (Environment and Land Appeal E025 of 2023) [2025] KEELC 4317 (KLR)", Case Analysis (2025). Not stated in the excerpt (ELC appeal at Siaya; judgment sought to be reviewed delivered 31st October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4317/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.