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ELCDismissedNot stated in judgment· [2022] KEELC 1766 (KLR)

George Antony Mwangi Gichina (Administrator of the Estate of the Late Hanniel Gichina Mwangi v Joe Mwaniki Mwangi & 2 others) [2022] KEELC 1766 (KLR)

Environment and Land Court
26 January 2022
1,791 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 ruled you cannot ask the same court to review a judgment you have already appealed, so the application was rejected with costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (B M Eboso J) determined a notice of motion dated 3/5/2018 in which Joe Mwaniki Mwangi sought review, variation or setting aside of a judgment rendered by Gacheru J on 23/2/2018. The underlying appeal had concerned trust over, and registration of, suit land; the earlier judgment allowed the appeal, set aside the trial court's decision, and dismissed the respondents' suit. The applicant, having lodged an appeal in the Court of Appeal against that judgment, sought review pending preparation of the record, alleging discovery of new evidence (a hospital report concerning Rahab Wanjiku's chronic dementia) and errors apparent on the face of the record. The respondent opposed through grounds of opposition and a preliminary objection that the appellant was deceased, contending the criteria for review were unmet and the dementia issue had already been litigated. The court framed a single issue: whether the application met the criteria for review under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. It applied Daniel Macharia Karagacha v Monicah Watithi Mwangi and Afit Kumar Rath v State of Orisa. Holding first that a party who has elected to appeal cannot seek review, the court found the application fatally incompetent. Second, the medical report had been procured some 40 days after judgment for Kshs 2,500 with no explanation why it could not have been obtained at trial, so the new-evidence ground failed. The application was rejected with costs to the respondent.

Key legal issues

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01

Competence of a review application where an appeal is pending

Holding

The application was fatally incompetent

Reasoning

The applicant himself deposed that he had lodged an appeal in the Court of Appeal and was applying for review pending preparation of the record of appeal. Under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, the review remedy is unavailable to a party who has elected to appeal. On that ground alone the application fails.

p. 2
02

Whether the alleged new medical evidence qualified as discovery of new and important matter

Holding

It did not; the applicant could not explain why the hospital document could not have been procured during trial

Reasoning

The medical report was procured approximately 40 days after judgment by paying Kshs 2,500 to the hospital. The applicant did not show what prevented him from obtaining the document during the trial in the subordinate court, so due diligence was not demonstrated and the review criterion was not met.

p. 3

Legal principles established

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  • A party who has filed an appeal cannot simultaneously seek review of the same decision
  • Review requires discovery of new and important matter not obtainable with due diligence, or an error apparent on the face of the record

Court orders

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  1. 1.The notice of motion dated 3/5/2018 is rejected for being incompetent and for failure to satisfy the criteria for review
  2. 2.The applicants shall bear the costs of the application
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the 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, "George Antony Mwangi Gichina (Administrator of the Estate of the Late Hanniel Gichina Mwangi v Joe Mwaniki Mwangi & 2 others) [2022] KEELC 1766 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1766/eng@2022-01-26

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