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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 43 of 2020· [2022] KECA 1155 (KLR)

Consolidated Bank Limited v Mutisya & 2 others

Court of Appeal
21 October 2022
2,964 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot review and appeal the same judgment — choosing review means giving up your right to appeal.

What this practically means

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Executive summary

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The appellant bank appealed against the judgment of the High Court at Makueni (C. Kariuki, J.) of 12 November 2018, which had dismissed the 1st respondent's suit in respect of Mbooni/Iiani/884, found the charge and guarantee valid, entered judgment on the counterclaim against the 2nd and 3rd respondents, but ordered the return of Mbooni/Iiani/107 to the 1st respondent on the basis that it was not charged. The appellant raised grounds touching on the charge over Mbooni/Iiani/107, compliance with Order 21 Rule 6, execution of the charge and guarantee, and the Deed of Guarantee and Indemnity. The 1st respondent objected that the record was incomplete and that the appellant, having pursued a review of the same judgment (dismissed on 4 July 2019) and appealed that dismissal in Civil Appeal No. 396 of 2019, could not also appeal the underlying judgment. The Court of Appeal held that the respondent bore a shared responsibility for the completeness of the record and had not lodged a supplementary record, so incompleteness was not fatal. However, applying Order 45 Rule 2 and its own decision in Mary Wambui Njuguna, the court held that review and appeal are mutually exclusive remedies: by opting for review the appellant had abandoned the option of appeal. By parity of reasoning the appeal was dismissed with costs to the 1st respondent, without reaching the merits of the charge or guarantee. The decision binds subordinate courts on the incompatibility of simultaneous review and appeal proceedings.

Key legal issues

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01

Whether the record of appeal was fatally incomplete for omitting review-related documents

Holding

Incompleteness was not a sufficient reason to render the appeal incurably defective because the respondent failed to lodge a supplementary record.

Reasoning

Rule 92(1) permits a respondent who considers the record defective to lodge a supplementary record with further documents. The 1st respondent did not do so, despite the shared responsibility of parties to compile a complete record. The court therefore declined to strike out the appeal on that ground, relying on Doris M. Wanjiru Kinuthia.

p. 5
02

Whether the appellant could appeal after pursuing review of the same judgment

Holding

No. Having chosen review, whose dismissal was itself appealed (Civil Appeal No. 396 of 2019), the appellant could not also appeal the underlying judgment; the appeal was dismissed.

Reasoning

Order 45 Rule 2 confines review to parties not appealing from the same decree. Following Mary Wambui Njuguna, opting for review abandons the appeal option. The appellant pursued review, appealed the dismissal of review, and then filed this appeal against the same judgment - a course the court held impermissible, dismissing the appeal by parity of reasoning without reaching the merits.

p. 5

Legal principles established

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  • The option of applying for review of a judgment is only open to parties who are not appealing from the same decision they seek to review; a party cannot pursue both review and appeal simultaneously.
  • By opting for review, a party effectively abandons the option of appeal against the same orders.
  • A respondent who contends the record of appeal is incomplete bears a shared responsibility to lodge a supplementary record under Rule 92(1); incompleteness is not automatically fatal.

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 6
  • Civil Procedure RulesOrder 45 Rule 2
  • Civil Procedure RulesOrder 45
  • Civil Procedure CodeRule 92(1)
  • Civil Procedure ActSection 80
  • Land Registration ActSection 35
  • Registered Land Act (repealed)Section 74

Cases cited (7)

  • Embakasi Properties Limited & another vs. Commissioner of Lands & another
    [2019] eKLR

    Kenyan title registration is based on the Torrens system; the register is a perfect mirror of the title

  • Lalji Karsan Rabadia & 2 others vs. Commercial Bank of Africa Limited
    [2015] eKLR

    Nature of a contract of guarantee and indemnity as an accessory contract

  • Mwaniki Wa Ndegwa vs. National Bank of Kenya Ltd & another
    [2016] eKLR

    Guarantor liable to full extent of obligation on default without notice or prior recourse against principal

  • Seventh Day Adventist Church East Africa Ltd & 2 others vs. Masosa Construction Company Ltd
    [2005] eKLR

    No party may unilaterally exclude documents from the record of appeal

  • Abok James Odera t/a A.J. Odera & Associates vs. John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR

    Duty of a first appellate court to re-evaluate, re-assess and reanalyse the evidence

  • Doris M. Wanjiru Kinuthia & 2 others vs. Purity Ndirangu
    [2015] eKLR

    Shared responsibility of parties to ensure relevant documents are included in the record

  • Mary Wambui Njuguna vs. William Ole Nabala & 9 others
    [2018] eKLR

    A party cannot pursue review and appeal simultaneously; opting for review abandons the appeal

On appeal from
High Court of Kenya at Makueni
Makueni High Court Case No. 5 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction (Constitution Article 164 and applicable appellate statute); judgment does not cite a specific provision

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, "Consolidated Bank Limited v Mutisya & 2 others", Case Analysis (2022). Civil Appeal 43 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1155/eng@2022-10-21

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