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ELCDismissed· [2018] KEELC 110 (KLR)

Kigwe Limited v Njewar Academy [2018] KEELC 110 (KLR)

Environment and Land Court
19 December 2018
2,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed Njewar Academy's second attempt to review the same ruling, confirming you cannot ask the same court twice — appeal instead.

What this practically means

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Executive summary

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Njewar Academy, the Defendant, filed a Notice of Motion dated 10th August 2016 seeking leave for new advocates to come on record, a temporary stay of execution, and review of the court's Ruling, Order and Decree of 26th September 2014, by which Mutungi J had struck out its Defence and Counter-claim, entered judgment for the Plaintiff, Kigwe Ltd, and ordered vacant possession of LR No.10823/5 Juja. The Defendant alleged mistake by its former advocates, who failed to produce exhibits and to interpret a prior ruling dismissing an earlier review application, and alleged that the Plaintiff's Principal Director had perjured himself and defrauded the court. The Plaintiff opposed, contending that a similar review application dated 4th February 2015 had been dismissed by a Ruling delivered on 15th February 2016, making the fresh application res judicata; that the court was functus officio; that the subject land had been donated to Jesus Winner Ministry Church, a non-party; and that the application was an abuse of process. Prayer 1 was allowed by consent. The court held that prayer for temporary stay had been spent. On the review prayer, the court applied Order 45 Rule 6 of the Civil Procedure Rules, which bars review of an order made on a review application, held that it was functus officio after its ruling on the earlier review, and found the second application res judicata under Section 7 of the Civil Procedure Act and an abuse of process. The correct remedy was an appeal. The application was dismissed entirely with costs to the Plaintiff.

Key legal issues

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01

Jurisdiction to review a review ruling

Holding

The court lacks jurisdiction to entertain a review of an order made on an application for review; Order 45 Rule 6 bars it outright

Reasoning

Order 45 Rule 6 of the Civil Procedure Rules expressly provides that an application to review an order made on an application for review shall not be entertained. The Defendant's prior review application of 4th February 2015 had been dismissed by the Ruling delivered on 15th February 2016. The present application therefore sought the same relief a second time, asking the court to sit on its own appeal, which the law does not permit.

p. 3
02

Functus officio

Holding

Having delivered its ruling on the prior review application, the court was functus officio and could not re-open the matter

Reasoning

The court held that after ruling on the review of the 26th September 2014 order, its only proper course for the Applicant was an appeal. The court relied on Akithii Ranching for the proposition that a court which has made its final decision has no jurisdiction to re-open the suit in which that decision was made.

p. 3
03

Res judicata and abuse of process

Holding

The second review application was res judicata, frivolous and vexatious and an abuse of the court process under Section 7 of the Civil Procedure Act

Reasoning

The matter directly and substantially in issue had already been heard and finally decided between the same parties in the prior review application. Section 7 of the Civil Procedure Act bars trying such an issue again. The court, citing Uhuru Highway Development Ltd v Central Bank of Kenya, found no basis for a re-hearing of an application once decided by a court of competent jurisdiction.

p. 4

Legal principles established

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  • No application may be made for review of an order made in an application for review; once a court has ruled on a review application it becomes functus officio and the remedy is appeal
  • A second application seeking the same review orders previously declined is res judicata and an abuse of the court process

Court orders

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  1. 1.Leave granted by consent to the Law Firm of Echessa & Bwire Advocates to come on record for the Defendant/Applicant instead of Mugo Moses & Co. Advocates
  2. 2.The application dated 10th August 2016 is disallowed entirely with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(b)
  • Civil Procedure RulesOrder 45 Rule 6
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e) and 7

Cases cited (2)

  • Akithii Ranching (Director Agricultural) Co. Ltd vs District Land Adjudication & Settlement Officer-Tigania District & 2 Others (2014)
  • Uhuru Highway Development Ltd vs Central Bank of Kenya & 2 Others
    C.A No.36 of 1996
Jurisdiction invoked
Inherent jurisdiction of the court; Order 45 Rule 1(b), Order 9 Rule 9, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Kigwe Limited v Njewar Academy [2018] KEELC 110 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/110/eng@2018-12-19

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