Raiply Woods (K) Limited v Erick Kironget Ngeywo & 10 others [2019] KECA 285 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once you choose the review route and finish it, you cannot switch back to appealing the original decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant, having elected and exhausted the review and setting aside procedure, can revert to the direct appellate process against the orders of 16th October 2017
- 2.Whether the mistake of counsel in pursuing the wrong procedure should be excused and not visited on the applicant
- 3.Whether Article 159(2)(d) substantive justice can salvage the intended direct appellate process
- 4.Whether the inherent power of the court under Rule 1(2) CAR can grant the relief sought
- 5.Whether refusal of the relief would amount to denial of the right of access to justice
Key legal issues
#Whether a party who loses on review can revert to the abandoned appeal process
No; the right of review has primacy where pursued earlier in time, and once review is fully determined the parties' position as regards the original appeal process is altered
Relying on Misc. Application No. 66 of 2016 (Attorney General & others v David Wanyonyi) and African Airlines International v PTA Bank, the court held that review and appeal are competing remedies; a party electing review and pursuing it to conclusion must have that process reversed and be restored ante before reviving the appellate route.
Whether mistakes of counsel justified excusing the wrong choice of procedure
No; the mitigation principle covers failure to take a procedural step, not deliberate election of a wrong remedy pursued unsuccessfully
The court distinguished authorities such as Belinda Murai, Philip Chemwolo and CFC Stanbic, which excused failures to take procedural steps, from a litigant who consciously elected one lawful procedure, exhausted it, and then sought to revert to another. The plea of mistake of counsel therefore failed.
Whether Article 159(2)(d) could override the procedural bar
No; substantive justice does not trump express statutory procedures and the provision is not a panacea for procedural shortcomings
Citing Jaldesa Tuke Dabelo, Raila Odinga and Patricia Cherotich Sawe, the court held that rules of procedure must be adhered to and that Article 159(2)(d) cannot confer jurisdiction to revive an abandoned appellate process. Inherent jurisdiction under Rule 1(2) is similarly residual and unavailable where Order 45 CPR governs.
Legal principles established
#- A party who elects to pursue the review/setting-aside procedure to its logical conclusion cannot thereafter revert to the abandoned direct appellate process unless that process is reversed and the parties restored to their original position
- The right of access to justice must be exercised within legally provided procedural requirements; refusal of an abandoned appellate route after exhausting review is not a denial of access to justice
- The sins-of-advocate principle applies to failures to take a procedural step, not to an advocate's unsuccessful pursuit of a chosen procedure to its logical conclusion
Court orders
#- 1.The application dated 27th August 2018 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC 415 of 2012
- Jurisdiction invoked
- Rules 4, 39, 42 and 43 of the Court of Appeal Rules and Rule 1(2) (inherent power); Article 159(2)(d) of the Constitution invoked in submissions
Relief refused
#Leave to file appeal out of time against the Ruling of 16th October 2017
The applicant elected and exhaustively pursued the review and setting aside procedure and cannot revert to the abandoned direct appellate process without first unwinding that process and being restored ante to the position as at 16th October 2017
Invocation of Article 159(2)(d) and inherent jurisdiction to excuse procedural missteps
Article 159(2)(d) is not a panacea for all procedural lapses; inherent jurisdiction is residual and inapplicable where Order 45 CPR procedures already govern the situation
Access to justice argument
The right of access to justice must be exercised within the law and was fully exhausted through the review and setting aside procedures
Costs
The application is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above assessment and reasoning is that the applicant stands non suited. There is therefore no need for me to interrogate the applicability or otherwise of the Rule 4 CAR prerequisites to his request for extension of time within which to appeal. The application is therefore dismissed with costs to the respondents.
the applicant having elected and exhaustively pursued the review and setting aside procedure cannot in law revert back to pursue the direct appellate process as of right
the right of access to justice has to be exercised within the law
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
Issues in the judgment
#The judgment refers to an application 'dated 19th November, 2017' while elsewhere the respondents' chronology refers to an application dated 19th October, 2017 seeking to set aside the order, described as 'filed on 7th December, 2017' - the internal dates of the respondents' chronological account are inconsistent
The judgment cites 'Kenya power & Highlighting Company Limited' - an apparent typographical error for 'Kenya Power and Lighting Company Limited'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Raiply Woods (K) Limited v Erick Kironget Ngeywo & 10 others [2019] KECA 285 (KLR)", Case Analysis (2019). Notice of motion dated 27th August, 2018 (arising from ELC 415 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/285/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.