Johannes Akelo Omboto & another v Kenya Railways Corporation & 4 others [2021] KEELC 3827 (KLR)
The bottom line
#Once you file an appeal in Kenya, the High Court's door to review closes — but strong grounds like poor service must be raised in that appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether review under Section 80 CPA and Order 45 Rule 1 CPR was available
Although new and important matter of evidence was demonstrated, review is barred because appeals have been preferred
The court accepted that the letters showing surrender of the land to the Government were new and important evidence not obtainable with due diligence at trial, satisfying Order 45 Rule 1. However, since the 1st and 3rd Respondents had preferred appeals, granting review would render the appeals nugatory and interfere with their outcome, so the review application was dismissed.
Whether the judgment against Hodima Construction Ltd should be set aside for want of service
The court found a natural justice violation but declined relief due to the pending appeal
The record showed no service of the cross-petition on Hodima, breaching Article 50(1). Grounds of opposition on affidavit formalities and the PDP failed since the applicant bore no onus on matters it never alleged. Yet because an appeal was pending in the Court of Appeal, the court held itself unable to interfere and directed the applicant to the appeal.
Whether stay of execution pending appeal should issue
Stay granted conditioned on provision of security
Applying Order 42 Rule 6(2) and case law, the court found the decree involved payment of Kshs. 5,000,000 plus interest which the respondents may execute; the notice of appeal was filed within six days, so no inordinate delay; and security was warranted because respondents had not shown capacity to refund public money. Stay and maintenance of status quo preserved the subject matter of the appeal.
Legal principles established
#- Review is unavailable once an appeal has been preferred against the order, as the appellate court's re-examination would be affected
- Service of a cross-petition on a person directly affected is required; condemning a party unheard violates Article 50(1)
- Stay pending appeal requires substantial loss, no unreasonable delay, security, and that the appeal not be rendered nugatory
Court orders
#- 1.The Notice of Motion dated 8th May 2020 seeking review is dismissed with costs to the Applicant (Kenya Railways).
- 2.The Notice of Motion dated 20th May 2020 (filed 22nd May 2020) by Hodima Construction Ltd to set aside the judgment is not allowed, recourse being in the Court of Appeal.
- 3.Stay of execution of the Judgment dated 5th May 2020 and the decree issued on 8th May 2020 and all consequential orders arising therefrom is granted pending hearing and determination of the appeal.
- 4.Status quo on the ground to be maintained; the 1st respondents in the petition are restrained from evicting the petitioners and/or taking possession of the suit property until the appeal is heard and determined.
- 5.The Applicant (Kenya Railways) to provide security of Kshs. 5,000,000/= as damages and Kshs. 473,975/= from 14th August 2019 to 5th May 2020 within 30 days.
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1, Order 10 Rule 11 and Order 42 Rule 6(2) of the Civil Procedure Rules; Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johannes Akelo Omboto & another v Kenya Railways Corporation & 4 others [2021] KEELC 3827 (KLR)", Case Analysis (2021). Petition No 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3827/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.