Cabinet Secretary, Ministry of Lands, Housing and Urban Development (Formerly Known as the Hon Minister For Lands) & 2 others v Osman On His Own Behalf and on Behalf of 1,122 Evictees of Medina Location, Municipal Council of Garissa) & another; Global Initiative for Economic Rights Socio-Economic Rights Institute Community Law Centre Centre For Economic and Social Rights Centre for Equality Rights in Accomodation Social Rights Advocacy Centre Malcolm Langford (Amicus Curiae) (Civil Appeal 89 of 2017) [2024] KECA 1715 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the State's appeal against orders compensating Garissa evictees because the State had already pursued review of the same judgment.
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 appellants could pursue the appeal when they had opted to pursue review to conclusion
- 2.Whether there was evidence of service of the petition and of the mention/hearing dates
- 3.Whether the awarded damages were manifestly excessive
Key legal issues
#Whether an appeal could be pursued after the party had prosecuted an application for review to conclusion
The appeal could not be pursued; the election of review, prosecuted to conclusion, extinguished the right to appeal the same judgment, rendering the notice of appeal purposeless. The appeal fell on this issue alone and was dismissed.
The Court held that a party aggrieved by a judgment may either appeal or seek review, but not both. The appellants filed a notice of appeal in 2011, then applied for review in 2014, which was dismissed in 2015; their recourse was to appeal that ruling, not to revive the pending appeal. To hold otherwise would reward those who gamble with judicial process.
Service of the petition and hearing dates, and quantum of damages
Not reached; the Court declined to determine the second and third issues because the appeal failed on the first issue.
The Court expressly stated it need not venture into the remaining issues once the first issue was answered in the negative. Had the point been raised in limine the appeal would have been struck out; having heard it to its end, the Court dismissed it as devoid of merit.
Legal principles established
#- An aggrieved party must elect between appeal and review; once review is pursued to its conclusion, no appellate jurisdiction remains over the same orders and the notice of appeal is rendered purposeless
- Filing a notice of appeal is not preferring an appeal and does not of itself preclude an application for review, but prosecuting that review to conclusion exhausts the party's options
Court orders
#- 1.Dismissal of the appeal
- 2.Costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Embu
- Constitutional Petition (not stated)
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules; appeal against judgment of the High Court in a constitutional petition (Articles 22, 23 and 165 of the Constitution invoked in the petition below)
Relief refused
#Setting aside the judgment and orders of the High Court (damages and costs) or a retrial before the Garissa High Court
The appellants having filed an application for review and prosecuted it to its conclusion, no jurisdiction remained for an appellate court over the same orders; the appeal did not lie
Costs
Appeal 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.
we associate ourselves with the decision in The Chairman Board of Governors Highway Secondary School v William Mmosi Moi (supra) that both options cannot be pursued concurrently or one after the other.
It suffices to state that once the appellants file an application for review and prosecuted it to conclusion, there was no option open for the appellants to proceed with the appeal to conclusion.
Having heard the appeal to its end, we can only make a finding that the same is devoid of merit and dismiss it, which we hereby do, with costs to the respondents.
It is well settled that where a party is aggrieved by the judgment, ruling or order of the trial court, such a party can either file an appeal or apply for review.
Issues in the judgment
#The judgment refers to the 1st respondent in the singular and plural inconsistently, and to conflicting numbers of evictees (1,122, 80 and 1,222).
The parties heading is unclear: a '2nd respondent' is referred to throughout, but the appeal is described as against the High Court judgment with the appellants and 2nd respondent as parties below, and the memorandum of appeal refers to a '3rd appellant'; the exact configuration of parties is not fully set out.
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.
- Cherop v Bowen (Civil Application E056 of 2024) [2025] KECA 1240 (KLR)[2025] KECA 1240 (KLR)11 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary, Ministry of Lands, Housing and Urban Development (Formerly Known as the Hon Minister For Lands) & 2 others v Osman On His Own Behalf and on Behalf of 1,122 Evictees of Medina Location, Municipal Council of Garissa) & another; Global Initiative for Economic Rights Socio-Economic Rights Institute Community Law Centre Centre For Economic and Social Rights Centre for Equality Rights in Accomodation Social Rights Advocacy Centre Malcolm Langford (Amicus Curiae) (Civil Appeal 89 of 2017) [2024] KECA 1715 (KLR)", Case Analysis (2024). Court of Appeal at Nyeri (record of appeal filed 2017; notice of appeal filed 25th November 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1715/eng@2024-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.