Godfrey Wanjala Wafula & another v Jairus Wakhungu Mulunda [2020] KEELC 1668 (KLR)
The bottom line
#You cannot ask a Kenyan court to review its own judgment while an appeal on the same decision is still pending — you must choose one remedy.
What this practically means
#Executive summary
#Key legal issues
#Availability of review where an appeal is pending
By filing Kisumu Court of Appeal Civil Appeal No 51 of 2018, the applicants removed themselves from the ambit of Order 45 Rule 1; review is only available where no appeal has been preferred.
Order 45 Rule 1(a) confines review to decrees or orders from which no appeal has been preferred. Having exercised their right of appeal, the applicants cannot simultaneously pursue review. Where a party wishes to review a decision already under appeal, the appeal must first be withdrawn, per the Court of Appeal in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd.
Unreasonable delay in applying for review
The application filed on 31st January 2020, almost two years after the judgment of 28th March 2018, was unreasonably delayed and unexplained, disentitling the applicants to review.
Order 45 Rule 1 requires an application for review to be made without unreasonable delay. The two-year delay was neither explained nor justified, and courts have found even shorter periods (6 and 11 months) unreasonable. The delay independently disentitled the applicants to the remedy.
Absence of new and important matter or error apparent on the face of the record
The affidavit material relied on was not new matter discovered after due diligence, and alleged misconstruction of law or evidence is a ground of appeal, not review.
The material on the Green Card entries and the alleged fraud was known to the applicants at the time of the decree. A counsel's lack of diligence is not an 'error' within Order 45 Rule 1. The applicants had withdrawn their suit, the respondent formally proved his counter-claim with their counsel cross-examining him, so there were no unconsidered 'real issues'. Any grievance lies on appeal, which is pending.
Legal principles established
#- Review is unavailable where an appeal from the judgment has been preferred and is pending; the appeal must first be withdrawn
- An application for review must be made without unreasonable delay; an unexplained delay of two years is not sufficient reason
- Misconstruction of law or evidence is a ground of appeal, not of review
Court orders
#- 1.The Applicants' Notice of Motion dated 31st January 2020 is dismissed
- 2.Each party to meet their own costs
- 3.The Deputy Registrar to either transmit a copy of the ruling to the Applicants at their last known address or find other means of ensuring they get the ruling, even as it is emailed to their last counsel on record
- Jurisdiction invoked
- Sections 80, 3 and 3A of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Wanjala Wafula & another v Jairus Wakhungu Mulunda [2020] KEELC 1668 (KLR)", Case Analysis (2020). Notice of Motion dated 31st January 2020 in Originating Summons dated 28th February 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1668/eng@2020-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.