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ELCDismissedNbi ELC Case No. 87 of 2010 (Judgment of 14th June 2019, review applications dated 17/12/2021 and 9/2/2022)· [2022] KEELC 13 (KLR)

Symphosia Consult Limited v Kaburu & 2 others (Environment & Land Case 256 of 2017) [2022] KEELC 13 (KLR)

Environment and Land Court
28 April 2022
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, through a Notice of Motion dated 17/12/2021, sought review, variation and/or setting aside of the Environment and Land Court's judgment delivered on 14th June 2019 concerning ownership of land parcel Dagoretti/Kinoo/816. The plaintiff relied on alleged new evidence including a title deed issued on 5/2/1993, the previous owner's title deed, survey and valuation reports, the sale agreement, proof of payment of Kshs 100,000 and land control board consent. The 1st Defendant, George Gikere Kaburu, opposed, contending he was the bona fide owner, that the plaintiff had delayed, had already filed a notice of appeal against the judgment, and that the Court of Appeal had on 22/11/2019 dismissed the plaintiff's application for extension of time to serve the notice of appeal for want of counsel's capacity. The court confirmed the notice of appeal on the file, found the plaintiff had not rebutted that assertion and had withheld the appellate developments. It held that the application was filed one and a half years after judgment without explanation, and that a party who has elected to appeal cannot 'engage a reverse gear' and seek review of the same judgment, offending Order 45 rule 1(a). The second application dated 9/2/2022 sought leave for Gitobu Imanyara & Co. Advocates to come on record after judgment under Order 9 Rule 9. Though unopposed, the court held that granting it after the review application failed would be an academic exercise issuing ineffectual orders. Both applications were dismissed with costs to the 1st Defendant on 28th April 2022, delivered virtually via Microsoft Teams.

Key legal issues

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01

Whether review of the judgment of 14/6/2019 was warranted

Holding

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

Reasoning

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).

p. 3
02

Whether leave should be granted for a change of advocates after judgment under Order 9 Rule 9

Holding

Dismissed as an academic exercise since the primary review application had failed, rendering the change of advocates ineffectual

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 17/12/2021 seeking review of the judgment of 14th June 2019 is dismissed with costs
  2. 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. 3.Both applications dismissed with costs to the 1st Defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1), 2(k), 159(2)
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 9 Rule 9
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

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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, "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.