Consolidated Bank Limited v Mutisya & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the record of appeal was fatally incomplete for omitting review-related documents
Incompleteness was not a sufficient reason to render the appeal incurably defective because the respondent failed to lodge a supplementary record.
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.
Whether the appellant could appeal after pursuing review of the same judgment
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.