Mary Waruga Wokabi & 3 others v Jacob Mwanto Wangora [2019] KECA 744 (KLR)

The court reasoned that under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, a party may elect either appeal or review but not both. Having filed and withdrawn a notice of appeal to pursue review, and lost that review, allowing an extension of time to appeal would amount to pursuing both avenues sequentially, which is an abuse of court process and would prejudice the respondent's legitimate expectation of enjoying the fruits of litigation.

Relying on Ketteman v Hansel Properties, the court held that the era of indulgence towards negligent conduct of litigation has passed; ignorance of the law is no defence, and litigants must bear the consequences of their counsel's erroneous advice. The court further found the intended appeal had no chances of success.

The court accepted the delay was explained by counsel's advice to pursue review, but held that explanation was immaterial because the election of review had compromised the right of appeal; the delay therefore could not be excused in light of that dispositive finding.

Given the finding that the right of appeal was compromised by the election of review, and that the proposed grounds rested on the very points the ELC court held suitable for appeal (rendering them unavailable via the chosen review route), the court concluded the intended appeal could not succeed and the extension of time could not be justified.