Symphosia Consult Limited v Kaburu & 2 others (Environment & Land Case 256 of 2017) [2022] KEELC 13 (KLR)
The bottom line
#A Kenyan court ruled you cannot seek review of a judgment after choosing to appeal it, and delayed review applications will fail.
What this practically means
#Executive summary
#Key legal issues
#Whether review of the judgment of 14/6/2019 was warranted
The review application was dismissed as unmerited because the plaintiff had filed a notice of appeal against the same judgment and could not seek review, and the application was brought with inordinate and unexplained delay
The court confirmed that a notice of appeal was filed on 18/7/2019 and not rebutted. The Court of Appeal had already dismissed the plaintiff's application for extension of time to serve the notice for want of counsel's capacity. Section 80 and Order 45 rule 1 require review applications to be made without unreasonable delay; the application came one and a half years after judgment. Having elected the appellate route, review was barred under Order 45 rule 1(a).
Whether leave should be granted for a change of advocates after judgment under Order 9 Rule 9
Dismissed as an academic exercise since the primary review application had failed, rendering the change of advocates ineffectual
Order 9 Rule 9 permits change of advocate after judgment only by court order or consent. Although the application was unopposed and supported by consent of the outgoing firm, the court held that allowing it after the review application failed would issue ineffectual orders. The plaintiff's sole remaining avenue was the appellate jurisdiction already invoked by the notice of appeal.
Legal principles established
#- A party who has opted to appeal a judgment cannot simultaneously or subsequently seek review of the same judgment
- An application for review must be made without unreasonable delay
Court orders
#- 1.The Notice of Motion dated 17/12/2021 seeking review of the judgment of 14th June 2019 is dismissed with costs
- 2.The Notice of Motion dated 9/2/2022 seeking leave for Gitobu Imanyara & Co. Advocates to come on record is dismissed with costs
- 3.Both applications dismissed with costs to the 1st Defendant
- Jurisdiction invoked
- Article 50(1), 2(k), 159(2) Constitution of Kenya; Sections 80, Order 45 rule (1) and Section 3A of the Civil Procedure Act and the Civil Procedure Rules; Order 9 Rule 9 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Symphosia Consult Limited v Kaburu & 2 others (Environment & Land Case 256 of 2017) [2022] KEELC 13 (KLR)", Case Analysis (2022). Nbi ELC Case No. 87 of 2010 (Judgment of 14th June 2019, review applications dated 17/12/2021 and 9/2/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.