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ELCStruck OutNot stated in judgment (filed in ELC Kakamega)· [2022] KEELC 2025 (KLR)

Reuben Kotwa Meda v Nora Kole & another [2022] KEELC 2025 (KLR)

Environment and Land Court of Kenya
25 January 2022
DOD. O. Ohungo
1,339 words in judgment
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The bottom line

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A Kenyan landowner's request to correct a court judgment was struck out because an appeal was already pending against the same ruling.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo J of the Environment and Land Court at Kakamega, delivered on 25th January 2022, determined a Notice of Motion dated 26th July 2021 in which the plaintiff sought review of a judgment delivered on 21st April 2021 by N. A. Matheka J. The original judgment had declared the plaintiff entitled to land parcel No. Kakamega/Bushu/489 by adverse possession and ordered its transfer to him, but the plaintiff contended his claim was only for 11.79 acres of that parcel, and that unless the judgment was reviewed the decree could not be implemented. The defendants opposed through grounds of opposition, arguing they had filed an appeal (Civil Appeal No. 176 of 2021, Court of Appeal) against the judgment and that the court was functus officio and would be sitting on its own appeal. Citing Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the court held that the existence of an appeal is a universal bar to review, applying to all parties, and that an appeal is deemed to exist once a Notice of Appeal is filed; the defendants' Notice of Appeal was filed on 6th May 2021, before the review application. The court therefore lacked jurisdiction, proceedings filed without jurisdiction being dead on arrival, and struck out the motion with no order as to costs, directing the plaintiff to pursue the issues in the pending appeal. Because N. A. Matheka J had been transferred, the application was determined under Order 45 Rule 2(2) of the Civil Procedure Rules.

Key legal issues

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01

Whether a pending appeal bars an application for review of the same decree

Holding

Yes. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules bar review where an appeal exists; the bar applies across the board to all parties, and an appeal is deemed to exist upon filing of a Notice of Appeal.

Reasoning

The court construed Section 80 CPA and Order 45 Rule 1 CPR and held the bar is universal, not limited to the appealing party. This prevents the appellate court deciding an appeal over a decree that has meanwhile been altered on review. A Notice of Appeal filed on 6th May 2021 preceded the review application of 26th July 2021, so an appeal existed and the court had no jurisdiction to entertain the review.

p. 2
02

Whether the court could entertain the application at all

Holding

No. Lacking jurisdiction, the motion was dead on arrival and had to be struck out, with the applicant left to pursue the issues in the pending appeal.

Reasoning

Relying on the jurisdictional principle that proceedings filed without jurisdiction cannot be remedied, the court held it could not consider the motion, notwithstanding that the error alleged (entitlement to 11.79 acres rather than the whole parcel) was genuine on the face of the judgment. The remedy lay in the appeal, Civil Appeal No. 176 of 2021.

p. 2

Legal principles established

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  • The existence of any appeal against a decree or order is a universal bar to review of that decree or order, not limited to the party appealing.
  • An appeal and an application for review in respect of the same decree or order cannot be pursued concurrently; the matter sought to be remedied by review must merge in the appeal.
  • An appeal is deemed to exist once a Notice of Appeal has been filed.
  • Proceedings filed in a court without jurisdiction are dead on arrival and cannot be remedied.

Court orders

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  1. 1.Notice of Motion dated 26th July 2021 is struck out with no order as to costs.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 Rule 2(2)

Cases cited (3)

  • William Karani & 47 others v Wamalwa Kijana & 2 others
    [1987] eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2(2) 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, "Reuben Kotwa Meda v Nora Kole & another [2022] KEELC 2025 (KLR)", Case Analysis (2022). Not stated in judgment (filed in ELC Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2025/eng@2022-01-25

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