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ELCDismissedNot stated in the judgment (Mombasa Petition)

Sheria Na Haki Human Rights Institute v Noor & 10 others (Constitutional Petition E003 of 2023) [2026] KEELC 2247 (KLR)

Environment and Land Court
23 April 2026
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a Notice of Motion dated 30th July 2025, the 1st Respondent, Ahmed Siraj Noor, sought review and setting aside of this Court's orders of 4th July 2025, which had dismissed his preliminary objection dated 3rd October 2024 that the Petition offended the doctrine of constitutional avoidance and was res judicata Mombasa ELC No. E011 of 2022 (OS). He also sought a declaration that the Petition was res judicata and its striking out with costs. He argued that the judgment and pleadings in the previous suit were on record, that the parties and subject matter (Plot No. MN/I/1885 and its subdivisions) were the same, and that a Ruling of 20th May 2024 had stayed the Petition as sub judice. The Petitioner opposed, contending that any error could only be cured on appeal, that no new evidence existed, and that the application was forum shopping and an afterthought. Justice J.O. Olola considered Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and applied National Bank of Kenya v Ndung'u Njau, Pancras T. Swai v Kenya Breweries and Nyamogo & Nyamogo v Kogo. The court held that a review must not mutate into an appeal; the Applicant's real complaint was that the court had misapprehended the law, which is a ground for appeal, not review. No error apparent on the face of the record was established. The application was dismissed with costs to the Petitioner on 23rd April 2026.

Questions the Court framed

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

  1. 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. 2.Whether the Applicant has shown sufficient reason to review and set aside the orders dismissing his preliminary objection dated 3rd October 2024
  3. 3.Whether the Petition ought to be struck out as res judicata Mombasa ELC No. E011 of 2022 (OS)

Key legal issues

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01

Whether there is a mistake or error apparent on the face of the record in the Ruling of 4th July 2025

Holding

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.

Reasoning

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.

p. 4
02

Whether a party who declared a matter sub judice earlier can convert that finding into res judicata on review

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 30th July 2025 is dismissed
  2. 2.Costs of the application awarded to the Petitioner

The bench

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

majority

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

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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

p. 4

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

p. 4

Costs

The application is dismissed with costs to the Petitioner.

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.

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.
p. 4Final orders - dismissal of the review application with costs
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.
p. 4Scope of review versus 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.
p. 4Characterisation of the Applicant's grievance
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.
p. 3Test for review (National Bank of Kenya v Ndung'u Njau)

Issues in the judgment

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minor

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

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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, "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.