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Court of AppealDismissedCivil Appeal No. 130 of 2016· [2017] KECA 219 (KLR)

Haithar Haji Abdi & another v Southdowns Developers Limited [2017] KECA 219 (KLR)

Court of Appeal
6 October 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
1,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot file for review of a judgment after you have already appealed it — you must choose one remedy or the other.

What this practically means

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Executive summary

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This appeal arose from the long-running dispute over L.R. No. 13154, originally registered in the appellants' favour and sold at a public auction in November 1991 to the respondent, who obtained registration in 2004 after the High Court had upheld the auction and ordered specific performance. The Environment and Land Court (Mutungi, J.) entered judgment against the appellants on 29th April 2013, ordering their eviction, a permanent injunction, and general damages of Kshs. 6,300,000 with interest. The appellants, who had already filed a notice of appeal and lost an application for stay, then applied to the trial court for review, seeking to set aside the judgment on the grounds of newly discovered evidence - namely, that the respondent was allegedly not incorporated when the auction took place and when it sued - and seeking reversion of the property. The trial court dismissed that application by a ruling dated 20th June 2014, and the appellants appealed. The Court of Appeal (Visram, Karanja and Koome, JJ.A), in a single judgment of the court, framed one issue: whether there were grounds for review. Applying Order 45 rule 1 of the Civil Procedure Rules and following its own decisions in Nguruman Limited v Jan Bonde Nielsen and Kisya Investments Ltd, the court held that review and appeal are alternative remedies, and that a review application lodged after an appeal has been preferred is incompetent. It declined to reach the merits, affirmed the ruling below, and dismissed the appeal with costs.

Key legal issues

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01

Whether the review application was competent given the pendency of an appeal against the same judgment

Holding

The application was incompetent because an appeal against the judgment of 29th April 2013 had been lodged before the review application was filed; the court below need not have considered the merits.

Reasoning

Order 45 rule 1 permits review by a person aggrieved by a decree or order from which no appeal has been preferred. Relying on Nguruman Limited and Kisya Investments, the court held that review and appeal are alternative remedies. The crucial date is when the review application is filed; if an appeal is pending on that date, the review jurisdiction is gone. That alone justified dismissal without examining the new-evidence and capacity grounds.

p. 4
02

Whether the claimed discovery of new evidence (that the respondent was not incorporated at the time of the auction and suit) warranted review

Holding

The court did not need to determine this ground because the prior appeal rendered the review application incompetent, which was sufficient to dismiss it.

Reasoning

The respondent produced a certified certificate of incorporation showing incorporation in 1989, before the 1991 auction. The Assistant Registrar of Companies confirmed this before the trial court. However, the Court of Appeal held that the competency defect was dispositive and the learned Judge needed not consider the merits of the application.

p. 4

Legal principles established

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  • An application for review and an appeal over the same decision are alternative remedies; a party cannot file an appeal and later seek review of the same judgment or ruling that is the subject of the appeal - a review application is incompetent once an appeal has been preferred.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1

Cases cited (2)

  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2013] eKLR
  • Kisya Investments Ltd. vs. Attorney General and R.L. Odupoy
    Civil Appeal No. 31 of 1995 (unreported)
On appeal from
Environment and Land Court at Nairobi
E.L.C. No. 1389 of 2004 (Ruling dated 20th June 2014)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the Environment and Land Court (specific statutory provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Haithar Haji Abdi & another v Southdowns Developers Limited [2017] KECA 219 (KLR)", Case Analysis (2017). Civil Appeal No. 130 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/219/eng@2017-10-06

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