Jesica Songole & another v Charles A. Muyunzu Kwenya & another [2019] KEELC 2290 (KLR)
The bottom line
#The Environment and Land Court in Kakamega refused to revive a land suit dismissed as previously decided, ruling that appeals — not review — are the correct remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether the requirements for review under Order 45 rule 1(b) and Section 80 of the Civil Procedure Act were met
The application fails; no error apparent on the face of the record, no new and important matter, and no other sufficient reason was established to warrant review of the judgment dismissing the suit as res judicata.
The court examined Order 45 rule 1(b) and Section 80 of the Civil Procedure Act and the case law on review. Review requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, and the discretion must be exercised judiciously. The suit had been struck out as res judicata, not on the merits, and the applicant identified no self-evident error. Reviewing the decision would amount to reviewing a decision of a court of concurrent jurisdiction, a power the court lacks; the applicant's remedy is an appeal.
Legal principles established
#- Review is only available where no appeal has been preferred against the order; once an appeal is preferred the court whose order is appealed from cannot review it.
- An error apparent on the face of the record must be self-evident and not require elaborate argument; a different view of the matter or an incorrect exposition of the law is not a ground for review.
- A court cannot review its own decision that struck out a suit as res judicata where that would amount to reviewing a decision of a court of concurrent jurisdiction; the remedy is appeal.
Court orders
#- 1.The notice of motion dated 24th June 2016 seeking review is dismissed with costs
- 2.It is so ordered
- Jurisdiction invoked
- Order 45 rules 1, 2 & 3 of the Civil Procedure Rules 2010 and Section 80 and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jesica Songole & another v Charles A. Muyunzu Kwenya & another [2019] KEELC 2290 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2290/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.