Jane Anyona Omutsani v Nasibi Aore [2019] KEELC 4870 (KLR)
The bottom line
#A Kenyan court set aside a 2013 land judgment on review, ruling that filing a notice of appeal does not block a party from seeking review.
What this practically means
#Executive summary
#Key legal issues
#Whether the filing of a Notice of Appeal bars an application for review
No - the filing of a notice of appeal does not amount to preferring an appeal; review remains available where no substantive appeal has been instituted
Relying on Noradhco Kenya Limited v Lorio Michele, Haryanto v ED & F Man (Sugar) Ltd and Motel Schweitzer v Thomas Edward Cunningham, the court held that a notice of appeal is only notice of intention to appeal; an appeal is instituted only when the record of appeal is lodged. The respondent admitted no substantive appeal followed the notice, so the review application could not fail on that account.
Whether the delay of about five years in bringing the review application was unreasonable and unexplained
The delay was adequately explained by the applicant's illness and the subsequent difficulties in retrieving his file from his former advocates and locating the court file
The court found that although no medical records from 2013 were exhibited, the respondent did not seriously contend the applicant had not been unwell, and the court was inclined to believe the illness prevented him from following up the case. The delay from 2016 onwards was explained by the advocate's withdrawal, tracing the file and the location of the missing court file in March 2018.
Whether the judge erred in determining the suit by way of written submissions without taking directions in accordance with Order 37
The court found the parties had agreed to determination by written submissions on the record, but that directions were nonetheless a necessary step in a matter of this nature and this ground of the application had merit
The record showed the applicant's own advocate suggested the filing of submissions and the court concurred, so the applicant could not complain no directions were given. However, applying the Robert K. Koech case, the court held that directions under Order 37 are a key and necessary step in Originating Summons proceedings and cannot be wished away, finding merit in this ground.
Legal principles established
#- The filing of a notice of appeal does not deprive a party of the right to apply for review, and an appeal is not deemed preferred until a record of appeal is lodged
- Directions are a key and necessary step in proceedings commenced by way of Originating Summons
Court orders
#- 1.Prayer No. 1 granted to the extent that the judgment of the court delivered on 27/6/2013 is set aside
- 2.The suit shall be brought up together with Kitale HCC No. 67 of 2011 (OS) on the 14th February 2019 for the purpose of issuing directions as to hearing of the two suits
- Jurisdiction invoked
- Inherent jurisdiction to review its own judgment (Order 44 of the Civil Procedure Rules invoked by the parties); no specific provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Anyona Omutsani v Nasibi Aore [2019] KEELC 4870 (KLR)", Case Analysis (2019). Kitale ELC (Originating Summons) - Notice of Motion dated 17th July 2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4870/eng@2019-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.