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Court of AppealDismissedCivil Appeal No. 52 of 2015· [2017] KECA 746 (KLR)

Fredrick Mutonyi Gitonga v Daniel Kibe Ritho (Administrator of the Estate of Robinson Ritho Kihara – Deceased)

Court of Appeal
1 March 2017
PWP.N. WakiRNR.N. NambuyeFSF. Sichale
2,703 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot pursue an appeal and a review of the same judgment at the same time — you must choose one.

What this practically means

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Executive summary

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The respondent, as administrator of the estate of Robinson Ritho Kihara, obtained vacant possession of land parcel Othaya/Kiahagu/754, purchased at a 1988 bank auction, after Makhandia, J's judgment of 22nd July 2009 allowed his claim and dismissed the appellant's adverse possession defence. The appellant, who had earlier filed a Notice of Appeal and Civil Appeal No. 97 of 2012 against that judgment, later applied for review. Ombwayo, J dismissed the review application, holding that appellate and review processes over the same judgment could not co-exist and that adverse possession was neither a review ground nor new matter, while allowing the respondent's eviction application. The appellant appealed to the Court of Appeal at Nyeri. The Court, comprising Waki, Nambuye and Sichaale, JJAs, in a single joint judgment, framed one issue: whether the judge exercised his discretion judiciously. Applying Mbogo v Shah and Githiaka v Nduriri, the Court held that a party aggrieved by a decree from which an appeal lies must elect between appeal and review; the two cannot co-exist. Adverse possession, previously pleaded but not pursued at trial, was neither a review ground under Order 45(1) nor new matter discoverable by due diligence. Once review was refused, the court could not withhold eviction orders facilitating enjoyment of the fruits of judgment. The appeal was dismissed with costs to the respondent on appeal and below. The appellant had already been evicted and the decree satisfied.

Key legal issues

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01

Election between appeal and review

Holding

A party cannot simultaneously pursue an appeal and an application for review of the same judgment; review under Order 45(1) is only available where no appeal has been preferred.

Reasoning

Order 45(1) restricts review to a decree or order from which no appeal has been preferred. The appellant had filed a Notice of Appeal and Civil Appeal No. 97 of 2012 against the same judgment and had not demonstrated withdrawal of that appellate process. The High Court correctly held that the co-existence of both processes was an abuse of court process, and the Court of Appeal found no error in that conclusion.

p. 4
02

Adverse possession as a ground for review

Holding

A claim of adverse possession, having been raised in the defence, is not a ground for review and does not qualify as new and important matter.

Reasoning

The appellant had pleaded adverse possession in his defence in the main suit but failed to advance it by cross-examining the respondent's witnesses or tendering his own evidence despite opportunity. Having been raised and abandoned at trial, it could not later be deployed as newly discovered matter or sufficient reason for review under Order 45(1) of the Civil Procedure Rules.

p. 4
03

Interference with discretionary decisions on appeal

Holding

An appellate court interferes with the exercise of discretion only where the judge misdirected himself or was clearly wrong, resulting in injustice.

Reasoning

Applying Mbogo v Shah, the Court found no demonstration that Ombwayo, J fell into error. He applied the correct principles on the prerequisites for review and properly allowed eviction once review was refused, so the fruits of the judgment could be enjoyed. The appeal on the discretionary rulings therefore failed.

Legal principles established

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  • A party aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been filed must elect between appeal and review; the two processes cannot co-exist against the same judgment.
  • A claim of adverse possession previously raised in a defence is neither a ground for review nor new and important matter discoverable by due diligence under Order 45(1).
  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself or was clearly wrong, resulting in injustice.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal and of the court below awarded to the respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 45 rule (1)

Cases cited (2)

  • Githiaka versus Nduriri
    [2004] 2 KLR 67

    Principles guiding exercise of judicial discretionary power - on sound reason, not whim or sympathy, aimed at doing justice.

  • Mbogo and Another versus Shah
    [1968] EA 93

    Circumstances in which an appellate court may interfere with a judge's exercise of discretion.

On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 50 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution Article 164)

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, "Fredrick Mutonyi Gitonga v Daniel Kibe Ritho (Administrator of the Estate of Robinson Ritho Kihara – Deceased)", Case Analysis (2017). Civil Appeal No. 52 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/746/eng@2017-03-01

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