George Antony Mwangi Gichina (Administrator of the Estate of the Late Hanniel Gichina Mwangi v Joe Mwaniki Mwangi & 2 others) [2022] KEELC 1766 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of a review application where an appeal is pending
The application was fatally incompetent
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.
Whether the alleged new medical evidence qualified as discovery of new and important matter
It did not; the applicant could not explain why the hospital document could not have been procured during trial
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 3/5/2018 is rejected for being incompetent and for failure to satisfy the criteria for review
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.