Eliud Murage Wambu v Joseph Muriithi Stanley & 2 others [2013] KEELC 150 (KLR)

The court applied the first test under Order 45 rule 1: review lies where no appeal has been preferred. The applicant had filed a Notice of Motion on 19/12/2011 in the Court of Appeal for extension of time to file a Notice of Appeal against the same judgment, which was dismissed. Although no Notice of Appeal was ultimately filed, the attempt itself barred a return to review, and a second application after the Court of Appeal's dismissal was an abuse of process.

The court applied the second test under Order 45 rule 1. The applicant relied on the Land Registrar's letter of 23/7/2008 and allegations of fraud in the Land Control Board consent process, but the court found nothing new; the complaint was the same one entertained and dismissed by Makhandia J. in 2007. The application was therefore frivolous on this ground.

Applying the third test, the court found that the applicant's complaints (failure to consider the Land Control Board consent issue and the magistrates' court's lack of jurisdiction over registered land) were the same issues decided by Makhandia J. A review cannot be used to re-litigate matters already decided; the application was in substance an appeal, and the High Court cannot sit on appeal over its own decision.

The final test under Order 45 rule 1 requires the application to be made without unreasonable delay. Judgment was delivered on 26/11/2007; an earlier review application was withdrawn by consent on 29/11/2009; a Notice of Appeal against that withdrawal order was struck out in Civil Appeal No.93 of 2010; and an extension-of-time motion filed on 19/12/2011 was rejected on 11/7/2013. The present application, filed almost four years after the withdrawal, was inexcusably late.