Teresia Njeri Mwangi & another v Roseline Kamunyu & 2 others [2021] KEELC 1619 (KLR)
The bottom line
#A Kenyan court refused to correct a land judgment because the same issues were already on appeal, so parties must raise such problems in the appeal instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the court can review its judgment and decree where an appeal on the same issues is pending before the Court of Appeal
The review could not be entertained because the issues were before the Court of Appeal, and under Order 45 rule 2 a review is barred where the ground of appeal is common to the applicant and the appellant
The court noted that although the Applicants were not the ones who filed the appeal, the Memorandum of Appeal showed the issues sought to be reviewed were part of that appeal. Reviewing the judgment would alter it and prejudice the pending appeal. Order 45(2) of the Civil Procedure Rules bars a review where the ground is common to the applicant and the appellant, so the application was dismissed entirely with costs.
Whether the alleged misdescription of the suit property was a clerical error or a mistake apparent on the face of the record
The court found the alleged errors stemmed from the Applicants' own pleadings rather than being a clerical error by the court
The court observed that in their Counter Claim the Defendants had sought relief in respect of Ruiru Kiu Block 1/768 rather than Ruiru West Block 1/768, and had sought registration of all Defendants rather than the 3rd Defendant alone. The issues therefore arose from the pleadings, not from a clerical mistake in the judgment, and would ordinarily be matters for the appellate court.
Legal principles established
#- A court has no jurisdiction to review its judgment on issues that are already the subject of an appeal before the Court of Appeal
Court orders
#- 1.The Notice of Motion dated 23rd February 2021 is dismissed entirely
- 2.Costs to the Plaintiffs/Respondents
- Jurisdiction invoked
- Sections 80, 99 and 100 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresia Njeri Mwangi & another v Roseline Kamunyu & 2 others [2021] KEELC 1619 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1619/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.