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ELCDismissedNot stated in judgment (application dated 5th March 2020)· [2020] KEELC 108 (KLR)

Moses Mwangi Karanja v David Macharia Gakuyu [2020] KEELC 108 (KLR)

Environment and Land Court
17 December 2020
2,318 words in judgment
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The bottom line

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A Kenyan land court refused to revisit a 2018 judgment, confirming that you cannot relitigate the same issue twice or use review as a second chance after choosing to appeal.

What this practically means

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Executive summary

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The Applicant, David Macharia Gakuyu, the judgment debtor, applied by motion dated 5th March 2020 for stay of execution of a judgment delivered on 26th February 2018 and/or its review, setting aside or variation. He argued that the court had failed to consider his submissions dated 1st November 2016 and had entered judgment on prayers abandoned in the Plaintiff's further amended plaint of 22nd July 2005, amounting to an error apparent on the face of the record. The judgment creditor opposed, contending the application was res judicata, that the conditions for stay set in Elena Doudoladova Korir v Kenyatta University had not been met, and that no grounds for review under Order 45 of the Civil Procedure Rules were established. The court noted the Applicant had earlier sought stay pending appeal by application dated 12th March 2018, which was dismissed on 2nd July 2018 without appeal against that ruling; the present stay application was therefore res judicata. On review, the court held that having filed a Notice of Appeal on 9th March 2018, the Applicant had exhausted the review option, review and appeal being mutually exclusive. The alleged error was also untenable because the impugned judgment expressly recited the further amended plaint, so no new evidence or patent error existed. The application dated 5th March 2020 was dismissed in its entirety with costs.

Key legal issues

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01

Res judicata in respect of stay of execution

Holding

The stay application was res judicata since an identical application had been dismissed on 2nd July 2018 and no appeal was preferred against that ruling

Reasoning

The Applicant had filed a Notice of Appeal and an application for stay dated 12th March 2018, which was dismissed on 2nd July 2018. He did not appeal against that dismissal, finalizing that issue. Re-litigating stay of the same judgment offended Section 7 of the Civil Procedure Act and the rationale that there must be an end to litigation.

p. 2
02

Whether there was an error apparent on the face of the record justifying review

Holding

No; the impugned judgment itself recited the further amended plaint of 22nd July 2005, so the pleadings were before the court and could not be treated as new evidence

Reasoning

The Applicant contended judgment was entered on abandoned prayers in the further amended plaint. The court found the judgment's opening statement expressly referenced the plaint dated 29th March 2001, amended 5th June 2001 and further amended 22nd July 2005, showing the court had considered the pleading; thus the alleged error was neither apparent on the record nor founded on new matter.

p. 3
03

Incompatibility of review with an appeal

Holding

Having filed a Notice of Appeal, the Applicant exhausted the review option and could not seek review to try his luck

Reasoning

Relying on Serephen Nyasani Menge v Rispah Onsase, the court held that Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 make review and appeal mutually exclusive remedies for the same decree. The Applicant's election to appeal, followed by abandonment of the appeal, barred the review application.

p. 3

Legal principles established

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  • A party who has filed a Notice of Appeal from a decree cannot simultaneously seek review of the same decree; review and appeal are not simultaneously available
  • Review cannot be used as a second chance to relitigate; an application constituting an abuse of process must fail
  • Review lies only for correction of a patent error of law or fact which stares in the face without elaborate argument

Court orders

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  1. 1.The application dated 5th March 2020 was dismissed in its entirety with costs

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 7
  • Civil Procedure Act Cap 21Section 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (4)

  • Elena Doudoladova Korir vs Kenyatta University
    [2014] eKLR
  • James Njuguna Chui vs John Njogu Kimani
    [2017] eKLR
  • Serephen Nyasani Menge v Rispah Onsase
    [2018] eKLR
  • Ajit Kumar Rath -vs- The State of Orisa & Others
    9 Supreme Court Case 596
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (application for review and stay of execution before the court that passed the decree)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moses Mwangi Karanja v David Macharia Gakuyu [2020] KEELC 108 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 5th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/108/eng@2020-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.