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ELCStruck Out· [2021] KEELC 595 (KLR)

Musa Said v Miraji Mustafa & 4 others [2021] KEELC 595 (KLR)

Environment and Land Court
30 November 2021
1,177 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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You cannot appeal a court decision and ask the same court to review it — filing a notice of appeal kills any review application in Kenya.

What this practically means

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Executive summary

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The applicant sought review of a ruling delivered by N. A. Matheka J on 26th October 2020 striking out his Notice of Motion dated 18th May 2020, contending there was an error apparent on the face of the record in that the court ought not to have found sub-judice and res judicata established under Sections 6 and 7 of the Civil Procedure Act. He also sought priority inter-partes hearing of the struck-out application and costs. Because Matheka J had been transferred, D. O. Ohungo J determined the application under Order 45 Rule 2(2) of the Civil Procedure Rules. The respondents had raised a preliminary objection, which was itself determined in a ruling dated 21st April 2021, and filed no further response. Neither party filed submissions despite being given the opportunity, and the court rendered its ruling on the material on record. The court held that the applicant had filed a Notice of Appeal on 5th November 2020 against the very ruling sought to be reviewed, and that a party who has filed an appeal automatically excludes himself from the option of review; review and appeal cannot be pursued concurrently. Consequently the court lacked jurisdiction, and an application filed in a court devoid of jurisdiction is dead on arrival. In the alternative, the court found no merit: an erroneous conclusion of law or evidence is not a ground for review. The Notice of Motion dated 5th January 2021 was struck out with no order as to costs, no response having been filed.

Key legal issues

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01

Whether the existence of a Notice of Appeal bars an application for review

Holding

Yes - by filing a Notice of Appeal on 5th November 2020, the applicant lost the right to seek review of the ruling of 26th October 2020, depriving the court of jurisdiction.

Reasoning

Relying on Otieno, Ragot & Company Advocates v National Bank of Kenya Limited, the court held that review and appeal cannot be pursued concurrently. The applicant's notice of appeal evinced an intention to appeal, which excluded the review route. Once jurisdiction is absent, the application is incompetent and must be struck out.

p. 2
02

Whether an error apparent on the face of the record was established

Holding

No - even on the merits the application would fail, because disagreement with the court's conclusions on sub-judice and res judicata amounts at most to an erroneous conclusion of law, which is not a ground for review.

Reasoning

The applicant contended that the court ought not to have found res judicata and sub-judice established under Sections 6 and 7 of the Civil Procedure Act. The court held that even if that were correct, an erroneous conclusion of law or evidence is a matter for appeal, not review, citing Jameny Mudaki Asava v Brown Otengo Asava.

p. 2

Legal principles established

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  • A party who has filed an appeal or a notice of appeal loses the right to apply for review of the decision being appealed
  • A suit or application filed in a court devoid of jurisdiction is dead on arrival and cannot be remedied
  • An erroneous conclusion of law or evidence is not a ground for review

Court orders

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  1. 1.Notice of Motion dated 5th January 2021 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 Rule 2(1)
  • Civil Procedure RulesOrder 45 Rule 2(2)

Cases cited (4)

  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Jameny Mudaki Asava v Brown Otengo Asava & another
    [2015] eKLR
  • Kamalakshi Amma v A. Karthayani
    [2001] AIHC 2264
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (jurisdiction declined due to pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musa Said v Miraji Mustafa & 4 others [2021] KEELC 595 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/595/eng@2021-11-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.