Rose Lwakosa v Keith Gogo Asava [2016] KECA 744 (KLR)
The bottom line
#Once you file a notice of appeal in Kenya, you cannot ask the same court to review its own judgment - choose one path, and choose carefully.
What this practically means
#Executive summary
#Key legal issues
#Competence of a review application filed after a notice of appeal
A party who has lodged a notice of appeal cannot thereafter apply for review of the same decree or order; review lies only where no appeal has been preferred.
The court relied on Order 45 rule 1 of the Civil Procedure Rules, which permits review only by a person aggrieved by a decree or order 'from which no appeal has been preferred'. Since the appellant filed a notice of appeal on 13th May 2013, the appeal was deemed filed, and her subsequent review application contravened the rule. The court reaffirmed its earlier decision in Kisya Investments Ltd v Attorney General. The review prayer was therefore misconceived and bad in law.
Discretion on stay of execution
An appellate court will not interfere with a judge's discretion on stay absent demonstration that it was exercised injudiciously.
The judge had reasoned that the defendant remained in possession of the suit land since 1976, had developed it, and that the plaintiff could pursue her appeal, with eviction following if she succeeded. The Court of Appeal found the appellant had not shown that this conclusion amounted to an injudicious exercise of discretion, and so declined to disturb it on appeal.
Legal principles established
#- Once a notice of appeal has been lodged, the appeal is deemed filed and the party may not thereafter apply for review of the same decree or order; a review application filed after a notice of appeal is incompetent.
- Filing a notice of appeal is deemed to constitute the filing of the appeal in the Court of Appeal.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Kakamega
- HCCC No. 55 of 2004 (ruling dated 19th May 2014, following judgment delivered 2nd May 2013)
- Jurisdiction invoked
- First appeal / appeal to the Court of Appeal under the Court of Appeal Rules (appeal against the High Court ruling dismissing an application for review and stay). The judgment does not expressly cite the constitutional or statutory appellate provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Lwakosa v Keith Gogo Asava [2016] KECA 744 (KLR)", Case Analysis (2016). Civil Appeal No. 48 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/744/eng@2016-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.