Hawala v Dickson (Environment and Land Miscellaneous Application E028 of 2025) [2025] KEELC 7144 (KLR)
The bottom line
#The Environment and Land Court struck down an attempt to overturn a Siaya trial court's decision through review, confirming that appeals—not review—are the remedy for disagreeing with a judgment.
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 orders sought by the applicant should issue
- 2.Whether the court could properly recall the decisions of the trial court, revise them and make directions in the manner approached by the applicant
- 3.Whether the grounds raised amount to grounds for review or for appeal
Key legal issues
#Whether the High Court/ELC could recall and revise the trial court's judgment and ruling on the grounds advanced
No. The grounds asserted (right to be heard, fair trial, defence not considered) are grounds of appeal against the correctness of the decision, not grounds for review under Section 80 and Order 45, and the application was struck out.
The court held that the applicant's grievances went to the merits or correctness of the trial court's judgment, which is the province of an appeal. Review under Section 80 CPA and Order 45 is confined to new and important matter, mistake or error apparent on the face of the record, or other sufficient reason. The applicant further invoked constitutional provisions to circumvent prescribed procedure, and the constitutional avoidance doctrine applied.
Whether constitutional provisions could be invoked to bypass the Civil Procedure Act remedies
No. The court applied the principle of constitutional avoidance, holding that statutory rights are enforced through prescribed procedures and the Constitution should not be engaged where another remedy exists.
Relying on Godfrey Paul Okutoyi, Uhuru Muigai Kenyatta and Communications Commission of Kenya, the court held that rights conferred by statute are not fundamental rights and that courts will not determine a constitutional question where the matter can be decided on another basis. The habit of parties hiding under constitutional provisions to circumvent prescribed rules must be discouraged.
Legal principles established
#- A review is not an appeal in disguise; it is confined to the grounds in Order 45 and a wrong conclusion on law or facts is a ground for appeal, not review.
- Parties should not hide under constitutional provisions to circumvent prescribed applicable rules; where a remedy exists under statute or ordinary procedure, the constitutional question should not be reached (constitutional avoidance).
Court orders
#- 1.The application dated 19th August 2025 is struck out
- 2.Costs granted to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 165(6)(7), 162(2) and 159(2) of the Constitution; Section 13 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules
Relief refused
#Revision of the ruling and order by Hon. Wambani (C.M), Siaya Law Courts, made on 13th March 2025
The grounds raised are grounds for appeal and not review; the application is improperly anchored on constitutional provisions to circumvent prescribed rules and was struck out
Revision of the judgment and orders of the trial court delivered on 30/09/2024
A mere wrong conclusion on law or facts is not a ground for review; the remedy is to appeal
Costs
Costs granted to the respondent - 'I grant 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.
A review is not an appeal in disguise. It must be confined to the scope and ambit of Order 44 Rule 1 [now Order 45]. The mere fact that a court reached a wrong conclusion on law or facts is not a ground for review. The remedy is to appeal.
The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure.
The application dated 19th August 2025 is hereby struck out. I grant costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hawala v Dickson (Environment and Land Miscellaneous Application E028 of 2025) [2025] KEELC 7144 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7144/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.