Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others
The bottom line
#Supreme Court dismissed review bid because applicants were given fair chance to be heard but chose not to file required submissions.
What this practically means
#The Supreme Court of Kenya dismissed an application to review its earlier ruling. The applicants claimed they were denied a fair hearing. However, the court found they had been given two opportunities to file written submissions but instead filed a preliminary objection. The court considered their objections in the pleadings. The court also said parties cannot dictate how the court runs its proceedings. To get a review, you must show a serious error, fraud, or other exceptional circumstance, which the applicants failed to do. Costs will be decided later.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants were denied the right to be heard and a fair trial under Article 50 of the Constitution.
- 2.Whether the applicants have met the threshold for review of the court's ruling of July 8, 2022 under section 21(4) of the Supreme Court Act and rule 28(5) of the Supreme Court Rules.
Key legal issues
#Whether the applicants were denied the right to be heard and a fair trial under Article 50 of the Constitution.
The applicants were not denied the right to be heard; they were given ample opportunity to file submissions but chose to limit themselves to the preliminary objection.
The court noted that on April 20, 2022, the applicants were directed to file submissions within seven days. They failed to do so, and on May 4, 2022, they were given an additional seven days. Instead of filing submissions on the main application, they filed a preliminary objection. The directions of May 23, 2022 regarding the preliminary objection did not exempt them from compliance on the application itself. The court considered all pleadings, including the applicants' objections, which raised substantive grounds on the merit of the application. Thus, the applicants were heard through their pleadings.
Whether the applicants have met the threshold for review of the court's ruling of July 8, 2022.
The applicants did not meet the threshold for review; there was no exceptional circumstance, error apparent on the record, illegality, fraud or deceit.
The court applied section 21(4) of the Supreme Court Act and rule 28(5) of the Supreme Court Rules, following its decisions in Fredrick Otieno Outa v Jared Odoyo Okello and Musembi & 13 others v Moi Educational Centre Co Ltd. The alleged violation of the right to be heard, which the court dismissed, did not constitute an exceptional circumstance. The court found no basis to review its earlier ruling.
Legal principles established
#- A party cannot direct the court on how to conduct its proceedings; the court controls its own process.
- To review a Supreme Court decision, an applicant must prove exceptional circumstance, error on the record, illegality, fraud, or deceit.
- The right to be heard is satisfied if a party is given an opportunity to present its case, even if it chooses to file only a preliminary objection.
- Courts consider all pleadings, including objections, when deciding applications; parties are heard through their filed documents.
- The threshold for review under section 21(4) of the Supreme Court Act is high and not met by mere claims of unfairness without evidence.
Court orders
#- 1.The notice of motion dated July 22, 2022 filed by the 1st to 4th applicants be and is hereby disallowed.
- 2.The notice of motion dated July 22, 2022 filed by the 5th and 6th applicants be and is hereby disallowed.
- 3.The costs of this application to abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya
- Supreme Court Application No 3 (E008) of 2022
- Jurisdiction invoked
- Articles 163(7)-(9) of the Constitution of Kenya, 2010; sections 3, 14(5), 16(1) and (5), 21(4) of the Supreme Court Act; rules 3(2), 28(5) of the Supreme Court Rules
Relief refused
#Stay of the ruling, certification, and order issued on July 8, 2022 and any further progression of the main appeal
The applications were found to lack merit.
Review and/or setting aside of the ruling of July 8, 2022
The applicants did not meet the threshold for review; no exceptional circumstance, error apparent on the record, illegality, fraud or deceit.
Opportunity to file and serve written submissions on the respondents' applications
The applicants were given ample opportunity but chose to limit themselves to the preliminary objection.
Costs
The costs of this application to abide the outcome of the appeal.
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 applicants were not condemned unheard as alleged since they were aware, as stated above, of the directions of the court with regard to the application dated April 19, 2022.
At no time should parties imagine that they can direct the court on its preferred course of action over a matter before it.
the applicants have not met the threshold for review of the court’s decision. There is no exceptional circumstance, error apparent on the record, illegality, fraud or deceit to warrant such a decision.
The notice of motion dated July 22, 2022 filed by the 1st to 4th applicants be and is hereby disallowed.
The notice of motion dated July 22, 2022 filed by the 5th and 6th applicants be and is hereby disallowed.
The costs of this application to abide the outcome of the appeal.
Key timeline
#Practical implications
#Comply strictly with court directions
Failing to file required submissions by deadline, even if you file a preliminary objection, leaves you unable to later claim denial of fair hearing. Always adhere to court orders on timelines, and if you choose to object, ensure you also comply with the original direction or seek a formal variation.
Litigation costs depend on compliance
Businesses involved in litigation must instruct their legal teams to follow court schedules without exception. Ignoring a direction to file submissions—even while raising an objection—can lead to adverse rulings and cost orders that abide the final outcome. Proactive compliance reduces risk.
Your right to be heard is not unlimited
If you are given a clear deadline to present your case and you miss it, the court may proceed without further input from you. This case shows that simply filing an objection is not enough; you must also respond to the main application as directed. Seek legal advice early to avoid losing your chance.
Frequently asked questions
#What is the threshold for review of a Supreme Court decision in Kenya?+
Under section 21(4) of the Supreme Court Act and rule 28(5) of the Supreme Court Rules, you must prove exceptional circumstance, error apparent on the record, illegality, fraud, or deceit. Simply claiming denial of fair hearing without evidence is not enough.
Can a Kenyan court decide a case without hearing your side?+
Yes, if you are given an opportunity to be heard but do not use it. In this case, the court gave the applicants two deadlines to file submissions. They only filed a preliminary objection. The court still considered their objections through the pleadings, so the right to be heard was respected.
What does 'costs abide the outcome of the appeal' mean in Kenya?+
It means the decision on who pays the legal costs of this application will be made when the main appeal is finally decided. The court did not award costs now; instead, the losing party in the overall appeal will be responsible for these costs.
How does the Supreme Court of Kenya control its own proceedings?+
The Supreme Court decides how its proceedings are conducted. Parties cannot tell the court what to do or when to decide. The court sets timelines, and everyone must follow them. This case confirms that ignoring court directions can lead to dismissal of your application.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Farah v Independent Electoral and Boundaries Commission (IEBC) & 2 others[2023] KESC 71 (KLR)11 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others", Case Analysis (2022). Application 3 (E008) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/72/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.