Sheria Na Haki Human Rights Institute v Noor & 10 others (Constitutional Petition E003 of 2023) [2026] KEELC 2247 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa dismissed a review application, confirming that disagreements over a judge's legal reasoning belong in an appeal, not a review.
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 Ruling of 4th July 2025 contains a mistake or error apparent on the face of the record warranting review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
- 2.Whether the Applicant has shown sufficient reason to review and set aside the orders dismissing his preliminary objection dated 3rd October 2024
- 3.Whether the Petition ought to be struck out as res judicata Mombasa ELC No. E011 of 2022 (OS)
Key legal issues
#Whether there is a mistake or error apparent on the face of the record in the Ruling of 4th July 2025
There is no such error; the Applicant was complaining that the court proceeded on an incorrect expansion of the law, which is not a ground for review.
The court found that the Applicant's real grievance was that the court had misapprehended the law in declining to find the Petition res judicata. Citing National Bank of Kenya v Ndung'u Njau and Pancras T. Swai v Kenya Breweries, the court held that faulting a decision on a point of law is a ground for appeal, not review, since review would circumvent appellate jurisdiction.
Whether a party who declared a matter sub judice earlier can convert that finding into res judicata on review
No; a finding that a matter is sub judice does not of itself warrant a subsequent declaration of res judicata, and the prior Ruling had already found the parties and subject matter not shown to be the same.
The court noted that in the Ruling of 4th July 2025 it had found the Applicant failed to demonstrate that the plaintiffs in Mombasa ELC No. 11 of 2022 (OS) instructed the Petitioner, and that the parties and subject matter were not established to be the same. The Applicant's assumption that a sub judice finding should lead to res judicata was unfounded.
Legal principles established
#- A review must be confined to the scope of Order 45 Rule 1 of the Civil Procedure Rules; faulting a decision on a point of law is a ground for appeal, not review
- An error apparent on the face of the record must be self-evident and not require elaborate argument; where another view is possible there is no such error
Court orders
#- 1.The Notice of Motion dated 30th July 2025 is dismissed
- 2.Costs of the application awarded to the Petitioner
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 and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)
Relief refused
#Review and setting aside of the orders of 4th July 2025 dismissing the 1st Respondent's application dated 3rd October 2024
No error apparent on the face of the record; the Applicant was merely faulting the decision on a point of law, which is a ground for appeal, not review
Declaration that the Petition is res judicata and its striking out with costs
The Court had already found that the Applicant failed to demonstrate that the parties in the two suits were the same and that they were litigating over the same subject matter
Costs
The application is dismissed with costs to the Petitioner.
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.
In the premises herein, I was not persuaded that there was any merit in the Motion dated 30th July 2025. The same is misconceived and devoid of merit. It is hereby dismissed with costs to the Petitioner.
It is trite that a review application must confine itself to the scope and ambit of Order 45 Rule 1 of the Civil Procedure Rules, lest it mutates into an appeal.
What the Applicant is saying in the instant application is that the Court misapprehended the law by failing to be guided by the decision of a concurrent Court in making an earlier decision herein.
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
Issues in the judgment
#The judgment is a Ruling on a review application but is styled as a judgment; also the case file number of the Petition itself is not stated on the face of the extract provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheria Na Haki Human Rights Institute v Noor & 10 others (Constitutional Petition E003 of 2023) [2026] KEELC 2247 (KLR)", Case Analysis (2026). Not stated in the judgment (Mombasa Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2247/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.