Peter Mambo Karinga v John Gitonga & 2 others [2021] KEELC 458 (KLR)
The bottom line
#In Kenya, if you ask a court to review its judgment and lose, you generally cannot appeal that same judgment later — the choice locks you in.
What this practically means
#Executive summary
#Key legal issues
#Whether a party who has pursued review of a judgment may thereafter appeal against that judgment
No; election of review bars a subsequent appeal against the same judgment, and the intended appeal is incompetent
The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1, holding they do not permit review and appeal over the same point in succession. The review grounds and draft grounds of appeal were similar in intent; having lost the review on 28/1/2021, the applicant could only appeal the review ruling, for which no extension of time was sought.
Whether the preliminary objection met the Mukisa Biscuit threshold
Yes; it raised a pure point of law capable of disposing of the application
The court restated the Court of Appeal's test in Mukisa Biscuit: a preliminary objection must raise a pure point of law, assume the pleaded facts correct, and not require ascertainment of facts or exercise of discretion. The bar on appealing after review is such a pure point and, if successful, disposes of the application.
Whether extension of time and stay should be granted
Both refused; no competent appeal exists to which time could be enlarged or execution stayed
Since the intended appeal against the judgment was incompetent after the failed review, enlargement of time was declined. Stay pending appeal was rejected because no appeal was pending. No extension had been sought in respect of an appeal against the review ruling either.
Legal principles established
#- A party who elects to seek review of a judgment and fails cannot thereafter prefer an appeal against the same judgment; they may only appeal against the ruling on review
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 bar seeking review and appeal over the same point simultaneously, contemporaneously or consecutively
- The Mukisa Biscuit tests for a preliminary objection: it must raise a pure point of law, assume pleaded facts are correct, and not depend on ascertaining facts or exercising discretion
Court orders
#- 1.The preliminary objection is upheld
- 2.The application dated 20/7/2021 is dismissed
- 3.No orders as to costs
- On appeal from
- Principal Magistrates Court at Ruiru
- PMCC No. 32 of 2019
- Jurisdiction invoked
- Inherent jurisdiction to enlarge time under the Civil Procedure Act and Civil Procedure Rules (Section 80 and Order 45 considered)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mambo Karinga v John Gitonga & 2 others [2021] KEELC 458 (KLR)", Case Analysis (2021). PMCC No. 32 of 2019, Appeal/Application dated 20/7/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/458/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.