Douglas Muindu Mbuvi v Inspector General of Police & 3 others;Cluster 2 Neighbours Residents Association (Interested Party) [2021] KEELC 1365 (KLR)
The bottom line
#You cannot pursue both an appeal and a review of the same Kenyan court order — filing a notice of appeal permanently closes the door to review.
What this practically means
#Executive summary
#Key legal issues
#Competence of a review application filed while a notice of appeal existed
The review limb of the application was incurably incompetent as review jurisdiction stood ousted by the filed and served notice of appeal
The court applied the election principle: an aggrieved party may pursue either appeal or review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, but not both. Filing and service of the notice of appeal on 26/7/2021 shut the door to review. The purported withdrawal of the notice of appeal on the eve of the hearing of the review application did not revive the ousted jurisdiction.
Whether the conservatory relief sought set aside the order of Gacheru J
It did not; preservation of the wayleave and water pipe could be achieved without interfering with Gacheru J's orders
The order of Gacheru J protects the petitioner's enjoyment of the suit property, while the respondents' second limb seeks interim preservation of the wayleave and water pipe. The respondents lay no claim to the rest of the land. Whether the wayleave was surveyed into the suit property is a matter for trial, so both conservations can coexist.
Criteria for grant of a conservatory order
The respondents satisfied the criteria, applying the public-law test in the Munya case; a conservatory order preserving the wayleave and water pipe was granted
Relying on the Supreme Court's formulation in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court assessed the inherent merit of the case, public interest and constitutional values. The respondents produced documentary evidence of acquisition of the wayleave in the 1990s and the petitioner filed no substantive response, justifying interim preservation pending trial.
Legal principles established
#- A party must elect between appeal and review; once an appeal is initiated by filing and service of the relevant instrument, review jurisdiction is ousted and subsequent withdrawal of the appeal does not revive it
Court orders
#- 1.The petitioner's preliminary objection dated 7/10/2021 is upheld only in so far as it relates to the respondents' plea for review of the decision of 15/7/2021 under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
- 2.The respondents' plea for a conservatory order is granted only to the extent that the petitioner is restrained from carrying out any or any further developments on the contested wayleave and/or above the water pipe, pending the hearing and determination of the petition and cross-petition
- 3.The petitioner shall be free to continue utilizing the rest of land Title Number Ruiru/Mugutha Block 1/8702
- 4.Costs of the application and the preliminary objection shall be in the cause
- On appeal from
- Court of Appeal (notice of appeal only; appeal withdrawn)
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Environment and Land Court jurisdiction); review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (held ousted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Muindu Mbuvi v Inspector General of Police & 3 others;Cluster 2 Neighbours Residents Association (Interested Party) [2021] KEELC 1365 (KLR)", Case Analysis (2021). Petition dated 9th June 2021 (application dated 2/9/2021 and preliminary objection dated 7/10/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1365/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.