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ELCDismissedJudicial Review proceedings, Nairobi (ruling on Notice to Cross-Examine by 3rd Respondent; full case number not stated in judgment)

Northern Block Residents Limited v National Environment Management Authority & 2 others (Environment and Land Case Judicial Review Application E001 of 2024) [2025] KEELC 5638 (KLR)

Environment and Land Court
29 July 2025
2,317 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused cross-examination in a judicial review, confirming such requests only succeed in exceptional circumstances.

What this practically means

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Executive summary

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This ruling by O. A. Angote J of the Environment and Land Court, Nairobi, dated 29 July 2025, determines a Notice to Cross-Examine filed by the 3rd Respondent, Treehouse Fifty-Eight Limited, seeking leave to cross-examine Tom Kabuga (director of the ex parte Applicant) and Ruth Ndesandjo (a Peponi Road resident) on their affidavits in an ongoing judicial review matter in which prohibition is sought against the 3rd Respondent, a private company. The 3rd Respondent argued that cross-examination was necessary to impeach the deponents' credibility, challenge the ex parte Applicant's locus standi and representation of residents, and secure a fair hearing under Article 50 of the Constitution. The ex parte Applicant countered that the issues were questions of law resolvable by argument, that no exceptional circumstances or specific contradictions were shown, and that the application collaterally attacked the earlier leave ruling. The court held that judicial review is a sui generis, affidavit-based jurisdiction under Order 53, ill-suited to resolving conflicting factual evidence, citing Ransa, Emfil, the Supreme Court in Sisi v DPP, and the UK Supreme Court's McAleenon decision. The authorities relied on by the 3rd Respondent were distinguished as ordinary civil suits or materially different. The court found the locus standi issues legal in nature and already canvassed in affidavits, that no contradictions were particularised, and no prejudice demonstrated. The Notice to Cross-Examine was dismissed with costs to the 3rd Respondent.

Questions the Court framed

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

  1. 1.Whether the 3rd Respondent has made out a case to warrant leave to cross-examine the deponents of the affidavits relied upon by the ex parte Applicant

Key legal issues

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01

Whether leave to cross-examine deponents should be granted in judicial review proceedings

Holding

Leave refused; judicial review is sui generis, decided on affidavit evidence, and cross-examination is exceptional.

Reasoning

The court applied Order 53's affidavit-based framework, relying on the Supreme Court's guidance that judicial review is not a full-fledged inquiry into merits and that conflicting affidavit evidence is ill-suited to judicial review. The issues the 3rd Respondent wished to test (locus standi, representation of residents) were legal in nature, already addressed in affidavits, and no specific contradictions or prejudice were established. Authorities cited by the 3rd Respondent were distinguished as ordinary civil suits or materially different on the facts.

p. 5

Legal principles established

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  • A judicial review court is not ideally placed to evaluate or resolve materially conflicting affidavit evidence; leave to cross-examine in judicial review is exceptional and granted only where the justice of the case so requires.

Court orders

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  1. 1.Leave to cross-examine the deponents Tom Kabuga and Ruth Ndesandjo is declined
  2. 2.The Notice to Cross-Examine is dismissed with costs to the 3rd Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; fair hearing guarantee under Article 50(1) of the Constitution

Relief refused

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Leave to cross-examine Tom Kabuga and Ruth Ndesandjo on their affidavits

No exceptional circumstances demonstrated; issues raised are legal in nature; no specific contradictions identified; no prejudice established

p. 5

Costs

The application is dismissed with costs to be borne by the 3rd Respondent.

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.

For the foregoing reasons, this court declines to grant the 3rd Respondent leave to cross examine the deponents, Tom Kabuga and Ruth Ndesandjo.
p. 5Refusal of leave to cross-examine
The application is accordingly dismissed with costs to be borne by the 3rd Respondent.
p. 5Final orders and costs
a Court sitting on Judicial Review exercises a sui generis jurisdiction which is very restrictive indeed, in the sense that it principally challenges the process, and other technical issues, like excessive jurisdiction, rather than the merits of the case.
p. 3Nature of judicial review jurisdiction
the 3rd Respondent has not identified or particularised any specific contradictions that would necessitate the exceptional measure of cross-examination.
p. 5Burden on party seeking cross-examination

Issues in the judgment

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material

The case number and full title of the main judicial review application are not stated anywhere in the ruling, making the matter difficult to identify.

minor

The judgment misspells several words (e.g. 'confiicting', 'afidavit', 'afirmed', 'eficiency'), reproduced verbatim in the text.

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, "Northern Block Residents Limited v National Environment Management Authority & 2 others (Environment and Land Case Judicial Review Application E001 of 2024) [2025] KEELC 5638 (KLR)", Case Analysis (2025). Judicial Review proceedings, Nairobi (ruling on Notice to Cross-Examine by 3rd Respondent; full case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5638/eng@2025-07-29

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