Moses Mwangi Karanja v David Macharia Gakuyu [2020] KEELC 108 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata in respect of stay of execution
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
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.
Whether there was an error apparent on the face of the record justifying review
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
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.
Incompatibility of review with an appeal
Having filed a Notice of Appeal, the Applicant exhausted the review option and could not seek review to try his luck
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.
Legal principles established
#- 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
#- 1.The application dated 5th March 2020 was dismissed in its entirety with costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mangana v Gwaro & 3 others (Environment & Land Case 69 of 2015) [2024] KEELC 1330 (KLR)[2024] KEELC 1330 (KLR)13 Mar 2024not followed
Cite this brief
#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.