Jimmy Musyoki Kilonzo v John Kyalo Kilonzo & 2 others [2014] KECA 354 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time for an appeal, confirming that choosing review forfeits the right to appeal the original decision.
What this practically means
#Executive summary
#Key legal issues
#Whether election of the review remedy bars a subsequent appeal against the original order
A party aggrieved by an order must elect between appeal and review; having chosen review, the right of appeal against the original order is exhausted, though the review decision itself is appealable.
Reading Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules, the court held that allowing both remedies to be exercised sequentially or simultaneously would make no sense of the law. The applicant invoked review of Makhandia J.'s ruling and lost before Jaden J., thereby exhausting his choice. Only an appeal against the review decision would now lie, not the original ruling.
Whether the discretion under Rule 4 should be exercised to extend time
The discretion was refused: the delay of over one and a half years was inordinate, partly unexplained, and the applicant's conduct did not merit favourable treatment.
The applicant blamed his former advocate, but even accepting that, no explanation covered the period after copies of proceedings were applied for on 20th September 2013 until the motion of 20th February 2014. No certificate of delay was exhibited, no notice of appeal was filed, and no draft memorandum was exhibited to show the seriousness of the intended appeal. Delay defeats equity.
Legal principles established
#- A party who chooses to proceed by way of review of an order loses the right of appeal against that order, and cannot revert to appeal once the review option fails.
- Extension of time under Rule 4 is a judicial discretion exercised on relevant factors including delay, reasons for delay, chances of the appeal succeeding, and prejudice to the respondent.
- The enhanced discretion under Sections 3A and 3B of the Appellate Jurisdiction Act does not displace established Rule 4 principles but enriches them.
Court orders
#- 1.Prayers 2 and 5 of the motion (injunction and stay) struck out as they do not lie for consideration before the Court
- 2.The application for extension of time dismissed
- 3.Costs of the application to the respondents
- On appeal from
- High Court of Kenya at Machakos
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, with Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jimmy Musyoki Kilonzo v John Kyalo Kilonzo & 2 others [2014] KECA 354 (KLR)", Case Analysis (2014). Civil Application (Motion dated 18th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/354/eng@2014-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.