Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 48 of 2014· [2016] KECA 744 (KLR)

Rose Lwakosa v Keith Gogo Asava [2016] KECA 744 (KLR)

Court of Appeal of Kenya
4 March 2016
769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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

#
The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJA) dismissed the appellant's appeal against a ruling of the High Court at Kakamega (Chitembwe, J.) delivered on 19th May 2014, which had dismissed her application for review of, and stay of execution of, the judgment of 2nd May 2013 dismissing her suit in HCCC No. 55 of 2004. The central issue was whether the review application was competent given that the appellant had already lodged a notice of appeal on 13th May 2013. Relying on Order 45 rule 1 of the Civil Procedure Rules and the court's prior decision in Kisya Investments Limited v Attorney General & Another, the court held that a party who has filed a notice of appeal cannot apply for review, since an appeal is deemed filed once a notice of appeal is lodged; the review prayer was therefore misconceived and bad in law. On stay of execution, the court noted the judge's reasoning that the respondent had been in possession of the suit land since 1976, had developed it, and that the appellant could pursue her appeal and evict him if she succeeded, and found that the appellant had not demonstrated any injudicious exercise of discretion. The appeal was accordingly dismissed with costs to the respondent. The judgment binds lower courts on the incompatibility of a post-notice-of-appeal review application.

Key legal issues

#
01

Competence of a review application filed after a notice of appeal

Holding

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.

Reasoning

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.

p. 2
02

Discretion on stay of execution

Holding

An appellate court will not interfere with a judge's discretion on stay absent demonstration that it was exercised injudiciously.

Reasoning

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.

p. 2

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. 1.Appeal dismissed with costs to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 rule 1
  • Court of Appeal Rulesrule 75

Cases cited (1)

  • Kisya Investments Limited v Attorney General & Another
    [1995] eKLR
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.