Ziporah Moraa v David Okioma & another [2020] KEELC 2275 (KLR)
The bottom line
#A Kenyan court ruled that you cannot choose review of a court order and then switch to an appeal once review fails.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 21st May 2015 was appealable as of right
It was not; leave under Order 43(3) was mandatory and had to be sought from the magistrate's court that made the order, which the Applicant failed to do, rendering the present application inept.
Order 43(1) sets out orders appealable as of right; any other order requires leave under Order 43(2). Leave must be sought from the court making the order, either orally at the time or within fourteen days. Following Serephen Nyasani Menge v Rispah Onsase, failure to seek and obtain leave is fatal and no competent appeal can be lodged. The present application for extension of time before this court could not cure that defect.
Whether a party who sought review may later appeal the same order
No. The two remedies cannot be pursued concurrently or successively; electing review and then appealing upon failure is an abuse of process contrary to the overriding objective.
Under section 80 and Order 45 rule 1, review and appeal are alternative remedies. Although there is no express bar in the rules, section 3A empowers the court to prevent abuse of process. Allowing a party to retreat from failed review to appeal would open multiple fronts in litigation and defeat sections 1A and 1B of the Civil Procedure Act. The court aligned itself with Mary Wambui Njuguna and The Chairman Board of Governors Highway Secondary School v William Mmosi Moi.
Whether leave to appeal out of time was merited
The application failed; the Applicant knowingly opted for review, exhausted it and its appeal, and had no good and sufficient cause for the delay.
Applying the extension-of-time principles (Salat/Fahim Yasin Twaha) and the 'good and sufficient cause' test under section 79G, the Applicant offered no sufficient explanation for the delay. Having elected review, she cannot backtrack to appeal after reaching a dead end. The application was an abuse of process and litigation must come to an end.
Legal principles established
#- Where leave to appeal is a prerequisite under Order 43(3), the leave application must be made to the court that made the order, orally at the time of the order or within 14 days.
- A party who opts for review of a decree or order cannot thereafter pursue an appeal against the same order; doing so is an abuse of the court's process.
Court orders
#- 1.The application dated 25th September 2018 lacks merit and is dismissed with costs to the Respondents
- On appeal from
- Subordinate court (Resident Magistrate's court)
- Not stated
- Jurisdiction invoked
- Sections 75G and 95 of the Civil Procedure Act (application for leave to appeal out of time under section 79G framework)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ziporah Moraa v David Okioma & another [2020] KEELC 2275 (KLR)", Case Analysis (2020). Not stated in the excerpt (referenced Ruling of 21st May 2015 by Hon. Nyagah, RM). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2275/eng@2020-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.