1.This ruling is in respect of the respondent’s Notice of Preliminary Objection dated October 31, 2022 and filed in court on November 9, 2022 (The Preliminary Objection herein).
2.The gist of the preliminary objection is that this court is functus officio having rendered its judgment on the matter in dispute. That therefore, a review of that decision cannot be entertained by this court.
4.Accordingly, the respondent through Tom Mboya and Company Advocates, filed submissions dated May 16, 2023 on May 22, 2023. Counsel submitted that this court is now functus officio, having rendered its judgment on the matter. That the applicant intends to appeal this matter in the form of review. To buttress the submissions, counsel relied on various authorities including the case of Raila Odinga and others v IEBC and others (2013) eKLR.
5.The appellant did not file submissions in respect to the instant preliminary objection.
6.It is noteworthy that, by way of a notice of motion application dated July 18, 2022 and filed herein on even date, the appellant, being dissatisfied with the judgment of this court delivered on June 21, 2022, sought, among other orders, to have the said judgment reviewed on account of discovery of new evidence.
7.The respondent opposed the application vide grounds of opposition dated August 17, 2022. The respondent also filed the instant preliminary objection.
8.I have duly considered the Preliminary Objection. So, is the Preliminary Objection sustainable?
9.It must be noted that the Preliminary Objection is on a point of law and may dispose of the suit; see Mukisa Biscuits case (infra).
12.Having considered the preliminary objection, the main issue that arises therein is one concerning the jurisdiction of this court to hear the appellant’s application for review. Simply put, whether this court has jurisdiction to re-open and review its decisions in a concluded appeal.
15.The Environment and Land Court is established under Article 162 (2) (b) of the Constitution of Kenya, 2010. Section 13 (1) of the Environment and Land Court Act 2015 (2011) stipulates the jurisdiction of the Environment and Land Court as follows:(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
16.Section 80 of the Civil Procedure Act, Chapter 21 Laws of Kenya, provides for review as follows:80.Any person who considers himself aggrieved –(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
17.Order 45 of the Civil Procedure Rules, 2010 sets out the procedure and conditions that an applicant must satisfy in an application for review. Equally, it makes it clear that a party cannot seek review of an order and appeal from the same order.
20.Thus, the learned judges of the Supreme Court of Kenya held as follows:
21.In addition to setting out the conditions that an applicant in an application for review must satisfy in order to get the application granted, Order 45 rule 1(a) and (b) (supra) reiterates the proviso of Section 80(a) and (b) which in my view makes it clear that the options of a review and an appeal are not simultaneously available to an aggrieved party. In the instant case, no appeal has been filed against the decision of this court delivered on June 21, 2022.
22.In light of the foregoing, it is my considered view that this court has jurisdiction to entertain the appellant’s application dated July 18, 2022.
23.To that end, the respondent’s Notice of Preliminary Objection dated October 31, 2022 is not merited in the circumstances. I proceed to disallow the same.
24.Costs to be in the cause.
25.It is so ordered.