Musa Said v Miraji Mustafa & 4 others [2021] KEELC 595 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the existence of a Notice of Appeal bars an application for review
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.
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.
Whether an error apparent on the face of the record was established
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.
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.
Legal principles established
#- 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
#- 1.Notice of Motion dated 5th January 2021 is struck out
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.