Charles Mwangi Mburu & another v Peter Ndungu Kariuki [2022] KEELC 2153 (KLR)
The bottom line
#A Kenyan court dismissed a bid to review a 2019 ruling, confirming that appeal—not review—is the remedy when you're unhappy with a judge's decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ruling of 5th December 2019 contained an error apparent on the face of the record warranting review
No error apparent was found; the impugned paragraph was a 'by the way' remark and not the main reason for dismissal of the application for extension of time
The Ruling of 5th December 2019 gave five reasons for dismissing the extension-of-time application, including delay, consent to the amended decree, prejudice from full execution, and unexplained delay. The remark about failure to seek setting aside was incidental, not the principal ground, so correcting it would not change the outcome and no review would lie.
Whether review is the appropriate remedy against a ruling of a judge of concurrent jurisdiction
No; the proper remedy is an appeal to the Court of Appeal
The applicants were aggrieved by a ruling of the same court and had a right of appeal which they did not exercise. Seeking review 1½ years later effectively asks the court to sit on appeal against a ruling of a judge of concurrent jurisdiction, which the law does not permit.
Whether the applicants' right of appeal was lost by having sought review at the lower court
Not tenable; the right of appeal was not lost due to the review application
Relying on African Airlines International Ltd v PTA Bank, the court held that jurisdiction to hear a review is not extinguished merely because an appeal has been filed; a party may appeal after a review application, though once the appeal is heard the review cannot proceed.
Legal principles established
#- Review lies only for error apparent on the face of the record; a party aggrieved by a ruling of a court of concurrent jurisdiction must appeal, not seek review
Court orders
#- 1.The Notice of Motion Application dated 18th June 2021 is dismissed entirely
- 2.No orders as to costs; each party to bear its own cost
- Jurisdiction invoked
- Sections 80, 63(c) and 3A 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, "Charles Mwangi Mburu & another v Peter Ndungu Kariuki [2022] KEELC 2153 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 18th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2153/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.