Benson Irungu Mbaria & 1 other v Enock Irungu
The bottom line
#Kenya's Court of Appeal dismissed a nine-year-late attempt to review a 2015 judgment, confirming litigants cannot switch routes after choosing to seek a Supreme Court appeal.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution pending review
Stay of execution pending the review application was refused as superfluous, the interlocutory relief being subsumed in the substantive review application.
By the court's directions of 20th February 2017, the stay and review applications were to be determined together as they relate to the same subject matter. Given the joint hearing, the stay application, which by its nature sought interlocutory relief pending review, added nothing and was subsumed in the substantive determination of the review.
Review of the Court of Appeal's own judgment on grounds of newly discovered evidence
Review was refused: the documents said to be new were available at or before the hearing, no explanation was given for their non-production, and no leave to adduce additional evidence had been sought.
The Certificate of Lease was issued on 23rd November 2005, long before the judgment, and the applicants conceded it was not before the High Court. Additional evidence on appeal requires leave, and none was sought. The review jurisdiction must be exercised with circumspection and is not a vehicle to re-hear a conclusively determined matter.
Election of remedial route and abuse of process
Having elected to pursue certification to the Supreme Court and failed, the applicants could not abandon that path and seek review of the same judgment; the attempt was an abuse of court process.
Upon delivery of the judgment the applicants had two options - review or appeal to the Supreme Court. They chose the latter. Once the election is made and undertaken, the other option is lost, and allowing a switch would prolong litigation and defeat finality, consistent with the principle in Karani that once an appeal is taken, review is ousted.
Legal principles established
#- A litigant who elects one mode of resolving the dispute (e.g. seeking certification to appeal to the Supreme Court) cannot abandon that route and revert to an alternative such as review; once an appeal is taken, review is ousted.
- Additional evidence cannot be produced before the Court of Appeal unless it formed part of the record before the High Court, and leave of the court is required to adduce additional evidence on appeal.
- The Court's residual jurisdiction to review its own decisions must be invoked with circumspection and does not permit a re-hearing to achieve a different result.
Court orders
#- 1.The application for stay of execution is rendered superfluous, being subsumed in the review application
- 2.The applications are dismissed
- 3.Costs to the respondent, following the event
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 167 of 2006
- Jurisdiction invoked
- Inherent residual jurisdiction of the Court of Appeal to review its own decisions under the Court of Appeal Rules, 2010 made under section 5(2) of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Irungu Mbaria & 1 other v Enock Irungu", Case Analysis (2024). Civil Appeal No. 167 of 2006 (application for review and stay of execution). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/306/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.