Tanjal Investments Ltd v El Nasr Export & Import Company [2004] KECA 78 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot seek review of a court order after filing an appeal against it — pick one remedy and act quickly.
What this practically means
#Executive summary
#Key legal issues
#Availability of review where an appeal has been preferred
A litigant who has lodged a notice of appeal against a ruling cannot turn around and apply for review of the same ruling; the learned judge rightly upheld the preliminary objection on this ground.
Order XLIV rule 1 permits review by a person aggrieved by a decree or order 'from which no appeal has been preferred'. The appellant had filed a notice of appeal against the 3rd March 1999 ruling, pursued extension of time under rule 4, lost before a single judge and before a full bench on reference, and only then sought review. This Court endorsed the Kisya Investments proposition as sound law and held the judge entitled to dismiss the review application.
Delay in applying for review
A review application must be brought without unreasonable delay; the appellant's application, made over two years after the ruling and only days after its appeal bid failed, was late and unexplained.
The court noted that the application for review came slightly over two years after the ruling and only a few days after the appellant's appeal efforts were concluded. Even independent of the bar created by the pending appeal, the delay itself would have defeated the application, since Order XLIV rule 1 requires the application to be made without unreasonable delay.
Legal principles established
#- A party who has filed a notice of appeal against a decree or order cannot subsequently seek review of the same decree or order; the review jurisdiction under Order XLIV rule 1 is unavailable once an appeal has been preferred.
- An application for review must be made without unreasonable delay; a review application brought after a long and unexplained delay will fail.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya
- null (ruling of Mitey J delivered 17th July 2001)
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (superior court) under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tanjal Investments Ltd v El Nasr Export & Import Company [2004] KECA 78 (KLR)", Case Analysis (2004). Civil Appeal No. 249 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/78/eng@2004-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.