A. Introduction
1. Before this Court is the Applicants’ Notice of Motion dated 19.11.25 seeking review and setting aside of the ruling delivered on 30th October 2025 in which this Court struck out the Applicants’ judicial review application for want of jurisdiction.
2. The application is brought pursuant to Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, as well as Articles 22, 23, 35, 43 and 47 of the Constitution.
3. The Applicants seek orders that:
a. The ruling delivered on 30th October 2025 be reviewed and set aside;
b. This Court find that it has jurisdiction to hear the matter;
c. The Applicants’ earlier application be reinstated for hearing on the merits; and
d. Costs be in the cause.
B. Background
4. The Applicants had initially moved this Court seeking judicial review orders of mandamus compelling the Respondents to supply information relating to the Nyagetokono Water Project in South Mugirango Constituency.
5. They alleged that the project had stalled despite allocation of public funds and sought disclosure of:
o funds disbursed for the project;
o the contractors involved;
o implementing agencies; and
o the current status of the project.
6. Upon considering the application dated 30th October 2025, the Court held that the issues raised related to a water project and therefore fell within the jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution.
7. The Court therefore struck out the application for want of jurisdiction.
8. The Applicants now seek review of that ruling.
C. Grounds of the Application
9. The Applicants contend that the Court erred in finding that it lacked jurisdiction and argue that:
a. The dispute concerns access to information and public accountability, not land ownership or use.
b. The Court misapprehended the nature of the dispute.
c. The application raises constitutional rights including the right to water under Article 43(1)(d) and the right to access information under Article 35.
d. The ruling contains an error apparent on the face of the record.
D. Issues for Determination
10. The application raises two principal issues:
i. Whether the Applicants have satisfied the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
ii. Whether the Court erred in finding that it lacked jurisdiction.
E. Law on Review of Court Orders
11. The power of review is provided under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
12. Under Order 45 Rule 1, review may only be granted where:
• there is discovery of new and important evidence;
• there exists an error apparent on the face of the record; or
• there is any other sufficient reason.
13. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR held that review cannot be used as an avenue for a party to re-argue its case or challenge the correctness of a decision.
14. Where a party is dissatisfied with the reasoning of a court, the appropriate remedy lies in appeal and not review.
F. Whether There Is an Error Apparent on the Face of the Record
15. The Applicants argue that the Court misapprehended the nature of the dispute and wrongly concluded that the matter fell within the jurisdiction of the Environment and Land Court.
16. However, the ruling delivered on 30th October 2025 was based on the Court’s interpretation of the pleadings and the nature of the dispute presented.
17. The Court formed the view that the dispute concerned a public water project, which inevitably raises issues relating to the management and utilization of water resources.
18. Matters relating to water resources, environmental management, and associated public infrastructure frequently intersect with environmental governance and land use planning.
19. The Constitution established the Environment and Land Court under Article 162(2)(b) specifically to handle disputes relating to the environment and the use and occupation of land.
20. Section 13 of the Environment and Land Court Act further provides that the ELC has jurisdiction to determine disputes relating to environmental planning, natural resources, and public infrastructure associated with land and water resources.
21. The Applicants’ dissatisfaction with the Court’s interpretation of jurisdiction does not amount to an error apparent on the face of the record.
22. Rather, it amounts to disagreement with the Court’s reasoning.
23. Such disagreement is properly addressed through the appellate process and not by way of review.
G. The Right to Water Argument
24. The Applicants have also invoked the constitutional right to water under Article 43(1)(d) of the Constitution.
25. Article 43(1)(d) provides that:
“Every person has the right to clean and safe water in adequate quantities.”
26. The Court fully acknowledges that access to water is a fundamental socio-economic right and an essential component of human dignity and public health.
27. However, the invocation of a constitutional right does not automatically determine the forum in which the dispute must be adjudicated.
28. Courts must still consider the constitutional structure of jurisdiction created by the Constitution.
29. Where a dispute substantially relates to environmental governance or public water infrastructure, the Constitution contemplates that such disputes may properly fall within the jurisdiction of the Environment and Land Court.
30. The mere assertion of constitutional rights cannot be used to circumvent the jurisdictional framework established under Articles 162 and 165 of the Constitution.
H. Whether the Court Should Exercise Review Jurisdiction
31. The Applicants have not demonstrated:
• discovery of new and important evidence;
• an error apparent on the face of the record; or
• any other sufficient reason to warrant review.
32. The application essentially invites this Court to reconsider and overturn its earlier interpretation of jurisdiction.
33. That is a matter that properly lies before the Court of Appeal.
I. Disposition
34. In the premises, the Court finds that the Applicants have not satisfied the legal threshold for review.
35. Consequently, the Notice of Motion seeking review of the ruling delivered on 30th October 2025 is without merit.
36. The Court therefore makes the following orders:
37. The Applicants’ Notice of Motion seeking review of the ruling delivered on 30th October 2025 is hereby dismissed.
38. The ruling striking out the Applicants’ application for want of jurisdiction remains in force.
39. The Applicants are at liberty to pursue the matter before the Environment and Land Court or through the appellate process.
40. Costs shall be in the cause
TERESA ODERA
JUDGE
9.3.26
DELIVERED VIRTUALLY ON THIS 9TH DAY OF MARCH IN THE PRESENCE OF FIRST APPLICANT & CA KIOPCHIRCHIR .
1. Before this Court is the Applicants’ Notice of Motion dated 19.11.25 seeking review and setting aside of the ruling delivered on 30th October 2025 in which this Court struck out the Applicants’ judicial review application for want of jurisdiction.
2. The application is brought pursuant to Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, as well as Articles 22, 23, 35, 43 and 47 of the Constitution.
3. The Applicants seek orders that:
a. The ruling delivered on 30th October 2025 be reviewed and set aside;
b. This Court find that it has jurisdiction to hear the matter;
c. The Applicants’ earlier application be reinstated for hearing on the merits; and
d. Costs be in the cause.
B. Background
4. The Applicants had initially moved this Court seeking judicial review orders of mandamus compelling the Respondents to supply information relating to the Nyagetokono Water Project in South Mugirango Constituency.
5. They alleged that the project had stalled despite allocation of public funds and sought disclosure of:
o funds disbursed for the project;
o the contractors involved;
o implementing agencies; and
o the current status of the project.
6. Upon considering the application dated 30th October 2025, the Court held that the issues raised related to a water project and therefore fell within the jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution.
7. The Court therefore struck out the application for want of jurisdiction.
8. The Applicants now seek review of that ruling.
C. Grounds of the Application
9. The Applicants contend that the Court erred in finding that it lacked jurisdiction and argue that:
a. The dispute concerns access to information and public accountability, not land ownership or use.
b. The Court misapprehended the nature of the dispute.
c. The application raises constitutional rights including the right to water under Article 43(1)(d) and the right to access information under Article 35.
d. The ruling contains an error apparent on the face of the record.
D. Issues for Determination
10. The application raises two principal issues:
i. Whether the Applicants have satisfied the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
ii. Whether the Court erred in finding that it lacked jurisdiction.
E. Law on Review of Court Orders
11. The power of review is provided under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
12. Under Order 45 Rule 1, review may only be granted where:
• there is discovery of new and important evidence;
• there exists an error apparent on the face of the record; or
• there is any other sufficient reason.
13. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR held that review cannot be used as an avenue for a party to re-argue its case or challenge the correctness of a decision.
14. Where a party is dissatisfied with the reasoning of a court, the appropriate remedy lies in appeal and not review.
F. Whether There Is an Error Apparent on the Face of the Record
15. The Applicants argue that the Court misapprehended the nature of the dispute and wrongly concluded that the matter fell within the jurisdiction of the Environment and Land Court.
16. However, the ruling delivered on 30th October 2025 was based on the Court’s interpretation of the pleadings and the nature of the dispute presented.
17. The Court formed the view that the dispute concerned a public water project, which inevitably raises issues relating to the management and utilization of water resources.
18. Matters relating to water resources, environmental management, and associated public infrastructure frequently intersect with environmental governance and land use planning.
19. The Constitution established the Environment and Land Court under Article 162(2)(b) specifically to handle disputes relating to the environment and the use and occupation of land.
20. Section 13 of the Environment and Land Court Act further provides that the ELC has jurisdiction to determine disputes relating to environmental planning, natural resources, and public infrastructure associated with land and water resources.
21. The Applicants’ dissatisfaction with the Court’s interpretation of jurisdiction does not amount to an error apparent on the face of the record.
22. Rather, it amounts to disagreement with the Court’s reasoning.
23. Such disagreement is properly addressed through the appellate process and not by way of review.
G. The Right to Water Argument
24. The Applicants have also invoked the constitutional right to water under Article 43(1)(d) of the Constitution.
25. Article 43(1)(d) provides that:
“Every person has the right to clean and safe water in adequate quantities.”
26. The Court fully acknowledges that access to water is a fundamental socio-economic right and an essential component of human dignity and public health.
27. However, the invocation of a constitutional right does not automatically determine the forum in which the dispute must be adjudicated.
28. Courts must still consider the constitutional structure of jurisdiction created by the Constitution.
29. Where a dispute substantially relates to environmental governance or public water infrastructure, the Constitution contemplates that such disputes may properly fall within the jurisdiction of the Environment and Land Court.
30. The mere assertion of constitutional rights cannot be used to circumvent the jurisdictional framework established under Articles 162 and 165 of the Constitution.
H. Whether the Court Should Exercise Review Jurisdiction
31. The Applicants have not demonstrated:
• discovery of new and important evidence;
• an error apparent on the face of the record; or
• any other sufficient reason to warrant review.
32. The application essentially invites this Court to reconsider and overturn its earlier interpretation of jurisdiction.
33. That is a matter that properly lies before the Court of Appeal.
I. Disposition
34. In the premises, the Court finds that the Applicants have not satisfied the legal threshold for review.
35. Consequently, the Notice of Motion seeking review of the ruling delivered on 30th October 2025 is without merit.
36. The Court therefore makes the following orders:
37. The Applicants’ Notice of Motion seeking review of the ruling delivered on 30th October 2025 is hereby dismissed.
38. The ruling striking out the Applicants’ application for want of jurisdiction remains in force.
39. The Applicants are at liberty to pursue the matter before the Environment and Land Court or through the appellate process.
40. Costs shall be in the cause
TERESA ODERA
JUDGE
9.3.26
DELIVERED VIRTUALLY ON THIS 9TH DAY OF MARCH IN THE PRESENCE OF FIRST APPLICANT & CA KIOPCHIRCHIR .