Kigwe Limited v Njewar Academy [2018] KEELC 110 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to review a review ruling
The court lacks jurisdiction to entertain a review of an order made on an application for review; Order 45 Rule 6 bars it outright
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.
Functus officio
Having delivered its ruling on the prior review application, the court was functus officio and could not re-open the matter
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.
Res judicata and abuse of process
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
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.
Legal principles established
#- 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
#- 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.The application dated 10th August 2016 is disallowed entirely with costs to the Plaintiff/Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.