Hamisi Juma Mbaya v Asman Amakecho Mbaya [2019] KEELC 1611 (KLR)
The bottom line
#A Kakamega court refused to reopen an adverse possession judgment because the case was already on appeal, confirming that review is not a second chance at losing arguments.
What this practically means
#Executive summary
#Key legal issues
#Whether an error apparent on the face of the record existed to justify review
No error apparent on the face of the record was established; the applicant failed to meet any ground for review under Order 45 rule 1
The court applied the Muyodi test that an error apparent must stare one in the face and leave no room for two opinions. The applicant's assertion that plot 3700 does not exist and was a cancelled sub-division required reasoning to establish and was contested by the respondent, who showed the Mumias cancellation decision was reversed on appeal in Kakamega High Court Civil Appeal No. 33 of 2012. The claimed error was therefore not an error apparent on the face of the record.
Whether the court could review its judgment while an appeal is pending before the Court of Appeal
The court declined to review its own judgment because the matter was on appeal; it characterized the application as an abuse of process
On 24th October 2018 the court had granted a stay of execution pending appeal, and the applicant had himself admitted in a chamber summons dated 1st August 2018 that an appeal was pending before the Court of Appeal at Kisumu. The court held that with the matter on appeal it could not review its own judgment, rendering the application an abuse of the court's process and a waste of the court's time.
Legal principles established
#- An error apparent on the face of the record must stare one in the face and admit of no two opinions; a merely erroneous or arguable view is a ground for appeal, not review
- A court with a judgment under appeal before the Court of Appeal cannot review its own judgment
Court orders
#- 1.The application for review is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 3A, 80 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 45 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi Juma Mbaya v Asman Amakecho Mbaya [2019] KEELC 1611 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1611/eng@2019-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.