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ELCStruck OutNot stated in judgment (Machakos ELC suit; Notice of Motion dated 22nd November, 2019)· [2021] KEELC 2019 (KLR)

Peter Thuranira Ndubai v Kiriinya Mwendia Mwithimbu [2021] KEELC 2019 (KLR)

Environment and Land Court
30 July 2021
OAO.A. Angote
2,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a review application because the party had already filed an appeal against the same judgment — you cannot pursue both.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Machakos by Notice of Motion dated 22nd November 2019 under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, seeking review of the judgment delivered on 13th April 2018 which had dismissed his suit for specific performance of a sale agreement over eight acres out of L.R. No. 14751/3, the agreement having been held void for want of Land Control Board consent. The Plaintiff argued he was a bona fide purchaser who had paid a Kshs 1,500,000 deposit, that the Defendant fraudulently sold the same land to others while the agreement subsisted and failed to disclose a charge, and that review was available despite a Notice of Appeal. The Defendant opposed, asserting the pendency of an appeal, lack of new evidence, inordinate delay, and that the deposit had been refunded by banker's cheque. Justice O.A. Angote framed a single issue: whether the court should review its 2018 judgment. Relying on Court of Appeal authority, notably N.P.R Warren v Musau and Otieno, Ragot v National Bank of Kenya, the court held that an appeal and an application for review cannot be pursued concurrently; the Plaintiff's unwithdrawn Notice of Appeal, lodged on 4th May 2018 against the entire judgment, ousted the right to review, whether or not a substantive appeal had been filed. The application was found incompetent and was struck out with costs.

Key legal issues

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01

Whether the court could review its judgment of 13th April, 2018 where the applicant had lodged an unwithdrawn Notice of Appeal

Holding

The application for review was incompetent because the plaintiff had filed a Notice of Appeal against the entire judgment which had not been withdrawn; filing the Notice of Appeal ousted the right to seek review.

Reasoning

Order 45 permits review only by a person 'not appealing from a decree or order'. Rule 2 of the Court of Appeal Rules defines an appeal to include an intended appeal. Recent Court of Appeal decisions confirm that review and appeal cannot be pursued concurrently, and it does not matter that a substantive appeal has not been filed. The plaintiff was keeping open its option to appeal while seeking review, which is impermissible.

p. 3

Legal principles established

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  • A party who has lodged a Notice of Appeal against a judgment cannot concurrently pursue an application for review of the same judgment; preferring an appeal ousts the right to review.

Court orders

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  1. 1.The Application dated 22nd November, 2019 is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 Rule 2
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 44 r.1 (as quoted in Noradhco)
  • Civil Procedure ActSection 80
  • Land Control ActSection 6(1)
  • Court of Appeal RulesRule 2
  • Court of Appeal RulesRule 75

Cases cited (6)

  • Noradhco Kenya Limited vs. Gloria Michele
    Court of Appeal at Mombasa Civil Appeal No. 258 of 1997
  • Shaffique Alibhai vs. William Onchanda Onguru t/a Onchanda Onguru and Co. Advocates & another
    [2019] eKLR
  • N.P.R Warren & 8 others vs. Christopher Musyoka Musau
    [2020] eKLR
  • Origo & Another vs. Mungala
    [2005] 2 KLR 307
  • Otieno, Ragot & Company Advocates vs. National Bank of Kenya Limited
    [2020] eKLR
  • Karani & 47 Others v Kijana & 2 Others
    [1987] KLR 557
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (application for review)

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, "Peter Thuranira Ndubai v Kiriinya Mwendia Mwithimbu [2021] KEELC 2019 (KLR)", Case Analysis (2021). Not stated in judgment (Machakos ELC suit; Notice of Motion dated 22nd November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2019/eng@2021-07-30

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