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ELCStruck OutNot stated in ruling (Notice of Motion dated 19th July 2021)· [2022] KEELC 1346 (KLR)

Jacqueline Mach Damon & another v Hugh George Cholmondeley Fifth Baron & 5 others [2022] KEELC 1346 (KLR)

Environment and Land Court
24 February 2022
JMJ M Mutungi
2,850 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot ask the same judge to review their own review ruling - your only route is an appeal or a fresh case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mutungi, J) determines a Notice of Motion dated 19th July 2021 by the 1st plaintiff, Jacqueline Mach Damon, seeking review of the court's order of 1st October 2020 (which had declined to review the 24th September 2019 order marking the 2nd plaintiff Mawe Mbili Company Ltd's suit withdrawn), leave to continue the claim as a derivative claim on behalf of the 2nd plaintiff, injunctions restraining eviction from LR 9362/4, leave to amend the plaint, and joinder of the 2nd plaintiff. The applicant, a divorced co-director and shareholder of the 2nd plaintiff, alleged her former husband colluded with the defendants to withdraw the company's suit after fire destroyed Sleeping Warrior Lodge. The respondents filed grounds of opposition and a preliminary objection on jurisdiction, invoking Order 45 Rule 6 of the Civil Procedure Rules barring review of a review. The court applied the Mukisa Biscuit test, held the preliminary objection was a pure point of law, and applied Order 45 Rule 6 and the functus officio doctrine (per Raila Odinga v IEBC citing Jersey Evening Post v Al Thani), finding the applicant was attempting a second review which only an appeal could challenge. The court held there was no subsisting suit by or on behalf of the 2nd plaintiff on which derivative leave could operate, noting her remedy was to commence a fresh action. The application was struck out as incompetent with each party bearing their own costs.

Key legal issues

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01

Jurisdiction over a second review application

Holding

The court lacks jurisdiction to review its own ruling of 1st October 2020, which itself disposed of an earlier review application, by virtue of Order 45 Rule 6; the application is incompetent and struck out.

Reasoning

Order 45 Rule 6 expressly bars an application to review an order made on a review. The 1st October 2020 ruling declined a review of the withdrawal order of 24th September 2019. Asking the court to review that ruling is a prohibited review of a review. Any challenge must be by appeal; the court is functus officio. All other prayers depended on the review succeeding.

p. 4
02

Derivative claim leave

Holding

Leave to prosecute a derivative claim cannot issue where no suit by or on behalf of the 2nd plaintiff is on record following its withdrawal.

Reasoning

Upon withdrawal of the 2nd plaintiff's suit on 24th September 2019, upheld by the refusal of review on 1st October 2020, the 2nd plaintiff ceased to be a party. Without reinstatement (impossible by further review), there is no suit on which derivative leave can operate. The applicant's remedy, if advised, is to commence a fresh action and seek leave.

p. 4

Legal principles established

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  • A court cannot entertain an application to review an order made on an application for review (Order 45 Rule 6); challenge to such a ruling lies only by appeal
  • Once proceedings are finally concluded a court is functus officio and cannot review or alter its decision

Court orders

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  1. 1.The Notice of Motion dated 19th July 2021 is struck out as incompetent for lack of jurisdiction under Order 45 Rule 6 of the Civil Procedure Rules
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 8 Rule 3(1), 5 and 7
  • Civil Procedure RulesOrder 45 Rule 2
  • Civil Procedure RulesOrder 45 Rule 6
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 3

Cases cited (5)

  • Foss vs Herbottle
    (1843) 2 Hanes 461
  • Mukisa Biscuit Manufacturing Ltd vs West End Distributors Ltd
    (1969) 1 EA 696
  • Bethewel Omondi Okal vs Managing Director KPLC
    (2019) eKLR
  • Raila Odinga & 2 others vs IEBC & 3 others
    (2013) eKLR
  • Jersey Evening Post Ltd vs Al Thani
    (2002) JLR 542
Jurisdiction invoked
Order 45 Rule 6, Order 51 Rule 1, Order 8 Rule 3(1), 5 and 7 and Section 3 of the Civil Procedure Act (court holds it lacks jurisdiction over a second review application)

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, "Jacqueline Mach Damon & another v Hugh George Cholmondeley Fifth Baron & 5 others [2022] KEELC 1346 (KLR)", Case Analysis (2022). Not stated in ruling (Notice of Motion dated 19th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1346/eng@2022-02-24

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