Mutuini Farmers Group v Michael M. Macharia [2020] KEELC 2644 (KLR)
The bottom line
#A Kenyan court refused to let a group file an appeal they had already withdrawn, ruling you cannot chase both review and appeal for the same judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocates were properly on record without a separate consent for the miscellaneous cause
The consent executed in a related suit between the same parties could be deemed to apply; in any event, as this miscellaneous cause is a fresh suit, the Applicant's advocates are legally on record.
The court applied Order 9 Rule 9 of the Civil Procedure Rules, which requires an order or consent for change of advocates after judgment. Noting that the erstwhile advocate accepted a consent of change in the related suit (ELC Appeal No. 1 of 2017) between the same parties, and that the miscellaneous cause falls within the definition of a suit, the court held the incoming advocates properly on record.
Whether time should be enlarged to file an appeal after the appeal was withdrawn and review pursued and dismissed
No. The Applicant abused the court process by seeking a fresh appeal after exhausting review; the prayer for enlargement of time was declined.
Relying on sections 79G and 95 of the Civil Procedure Act and Serephen Nyasani Menge v Rispah Onsase, the court held that a party cannot apply for review and appeal from the same decree. Having withdrawn its appeal on 30th June 2017 to pursue review, which was dismissed, the Applicant had its day in court and litigation must come to an end.
Whether an injunction pending appeal should issue against the Respondent
No. The lower court judgment has not been set aside and no appeal is on file; no prima facie case was established under the Giella v Cassman Brown principles.
The court noted the judgment of the SRM's court remains in force and no appeal has been filed. Since the court below held the Respondent to be the owner of the suit plot, and applying the Giella v Cassman Brown principles, the Applicant failed to establish a prima facie case warranting an injunction.
Legal principles established
#- A party who withdraws an appeal and pursues review of the decree cannot afterwards seek leave to appeal from the same decree; such conduct is an abuse of the process of the court.
Court orders
#- 1.The current Applicant's advocates (Ndungu Githuka & Company Advocates) are deemed properly on record in the miscellaneous cause.
- 2.Prayer No. 2 (enlargement of time to lodge an appeal) dismissed.
- 3.Prayer No. 3 (injunction pending appeal) dismissed.
- 4.Prayers 2 and 3 dismissed with costs.
- On appeal from
- Senior Resident Magistrate's Court at Kajiado
- Civil Suit No. 157 of 2009
- Jurisdiction invoked
- Sections 1A, 1B(1), 3A, 63(e) and 79G of the Civil Procedure Act; Order 9 Rule 9(b), Order 41 Rule 1(1)(a), Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuini Farmers Group v Michael M. Macharia [2020] KEELC 2644 (KLR)", Case Analysis (2020). Miscellaneous Cause (Notice of Motion dated 24th July, 2019), Environment and Land Court, Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2644/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.