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Court of AppealDismissedCivil Application No. NAI. 4 of 1999

Gharib Mohamed Gharib v Sulekha Mohamed Naaman [1999] KECA 96 (KLR)

Court of Appeal of Kenya
27 January 1999
KWKwachSHShahOWOwuor
206 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that once you apply for review of a court decision, you cannot later seek extra time to appeal that same decision.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Mombasa (Kwach, Shah and Owuor JJ.A) determined a reference to the full court from the decision of Omolo JA, sitting as a single judge, who had rejected the applicant Gharib Mohamed Gharib's application for extension of time to file an appeal out of time. The intended appeal was from a ruling of Waki J in the High Court at Mombasa in H.C.C.C. No. 2 of 1998 dated 23 July 1998. The full court considered whether the single judge had erred in refusing the extension. It held there was no basis for such a finding: by applying for review of the High Court ruling, the applicant had made his election and was bound by it, precluding him from simultaneously pursuing an appeal out of time. The court affirmed the single judge's decision, found no merit in the reference, and dismissed it with costs to the respondent Sulekha Mohamed Naaman. The judgment is a single ruling of the whole court with no separate opinions and cites no authorities or statutory provisions. Its binding proposition for lower courts is that a litigant who elects the remedy of review is bound by that election and cannot thereafter obtain an extension of time within which to appeal the same decision.

Questions the Court framed

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

  1. 1.Whether the single judge erred in holding that the applicant, by applying for review, had made his election and was bound by it, thereby disentitling him to an extension of time to file an appeal

Key legal issues

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01

Whether an application for review amounts to an election that bars a subsequent application for extension of time to appeal

Holding

Yes. The single judge was right to hold that by applying for review the applicant elected that course and was bound by it, so the extension application was properly rejected.

Reasoning

The full court, on reference from the single judge's decision, found no basis to disturb the single judge's view. The applicant's pursuit of review of the High Court ruling constituted an election of remedies inconsistent with a simultaneous intention to appeal; being bound by that election, he could not obtain an extension of time to file an appeal. The reference therefore lacked merit and was dismissed with costs.

p. 2

Legal principles established

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  • A litigant who elects to apply for review of a decision is bound by that election and cannot thereafter seek extension of time to appeal from the same decision

Court orders

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  1. 1.The reference to the full court is dismissed with costs to the respondent

The bench

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

KW
majority
SH
majority
OW
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 2 of 1998
Jurisdiction invoked
Reference to full court from the decision of a single judge of the Court of Appeal (Omolo JA) rejecting an application for extension of time to file an appeal

Relief refused

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Extension of time to file an appeal out of time

By applying for review the applicant had made his election and was bound by it

p. 2

Costs

The reference is dismissed with costs to the respondent

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.

There is no basis upon which we can say that the single judge was wrong in taking the view that by applying for review the applicant had made his election and was bound by it.
p. 2Election of remedies - review application bars extension of time to appeal
In the circumstances we find no merit in this reference and it is accordingly dismissed with costs to the respondent.
p. 2Final orders - dismissal of the reference with costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gharib Mohamed Gharib v Sulekha Mohamed Naaman [1999] KECA 96 (KLR)", Case Analysis (1999). Civil Application No. NAI. 4 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/96/eng@1999-01-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.