Menge v Onsase [2018] KEELC 654 (KLR)
The bottom line
#The Environment and Land Court refused to let a tenant appeal out of time because she had already tried a review and never obtained the mandatory leave to appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 18th December 2015 was appealable as of right
The order was not appealable as of right under Order 43 Rule 1 of the Civil Procedure Rules; leave under Section 75(1) of the Civil Procedure Act and Order 43(3) was required and was not sought within 14 days
The application before the magistrate was brought under Section 14 of the Landlord (Shops, Hotels and Catering Establishments) Act and Sections 1A, 1B and 3A of the Civil Procedure Act, none of which falls within the orders listed in Order 43 Rule 1 as appealable as of right. Order 43(3) requires leave to be sought from the court making the order either orally at the time or within fourteen days. This requirement is mandatory, and failure to obtain leave is fatal to any appeal.
Whether the applicant could appeal an order she had previously sought to review
A party who opts for review of an order cannot, after the review is rejected, exercise the option to appeal against the same order
Reading Section 80 of the Civil Procedure Act together with Order 45 Rules 1 and 2 of the Civil Procedure Rules, the options of review and appeal are not simultaneously available to an aggrieved party. The applicant exhausted the review process up to appeal and cannot return to the same order to try an appeal. Doing so would be an abuse of court process and an attempt at a second bite of the cherry; litigation must come to an end.
Whether the applicant demonstrated good and sufficient cause for the delay under the proviso to Section 79G
No sufficient cause was demonstrated; the fact that the applicant had applied for review operates against her, and being represented by counsel she must have exercised her options consciously
Even independently of the two dispositive grounds, the applicant failed to show sufficient cause why the appeal was not filed within time. The reason given - that she had applied for review - is itself a bar because review and appeal are mutually exclusive. The court also noted that the applicant was throughout represented by counsel and therefore exercised her options knowingly.
Legal principles established
#- Where leave to appeal is a prerequisite, failure to seek and obtain leave within the prescribed period is fatal and no competent appeal can be lodged
- A party cannot apply for review of a decree or order and thereafter appeal from the same decree or order; the two options are not simultaneously available
- An application for extension of time to appeal out of time does not cure the absence of the requisite leave to appeal
Court orders
#- 1.The applicant's Notice of Motion application dated 11th July 2018 is dismissed with costs to the respondent
- On appeal from
- Chief Magistrate's Court at Kisii
- Miscellaneous Civil Application No. 162 of 2015
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mascarenhas & 2 others v Waithaka t/a Zegoko Enterprises (Environment and Land Appeal E162 of 2024) [2026] KEELC 599 (KLR)[2026] KEELC 599 (KLR)30 Jan 2026
- Kangethe & another v Ngai & 3 others (Environment and Land Appeal E021 of 2025) [2025] KEELC 7474 (KLR)[2025] KEELC 7474 (KLR)30 Oct 2025followed
Cite this brief
#Cite this brief
Caselaw, "Menge v Onsase [2018] KEELC 654 (KLR)", Case Analysis (2018). Kisii ELC Judicial Review Application No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/654/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.