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ELCDismissedNot stated in the judgment (Notice of Motion dated 18th June 2021)· [2022] KEELC 2153 (KLR)

Charles Mwangi Mburu & another v Peter Ndungu Kariuki [2022] KEELC 2153 (KLR)

Environment and Land Court of Kenya at Murang'a
20 January 2022
3,057 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 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

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Executive summary

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The Applicants moved the Court by Notice of Motion dated 18th June 2021, under Sections 80, 63(c) and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, seeking review and setting aside of the Ruling of Lady Justice J.G. Kemei delivered on 5th December 2019, which dismissed their application for extension of time to appeal against an exparte judgment of the lower court (Murang'a CMCC No. 246 of 2013). They alleged an error apparent on the face of the record: at paragraph 25 of the Ruling the court stated they had not sought to set aside the lower court judgment, when in fact a Notice of Motion dated 19th June 2019 seeking setting aside had been filed and disallowed on 25th July 2019, though their then counsel had omitted to attach it. The Respondent opposed, arguing the ruling was sound, the judgment had been fully executed, endless review applications were improper, and the correct remedy was appeal. The court found that the Ruling had given five reasons for dismissal and the impugned remark was only incidental ('a by the way'), so no error apparent on the face of the record existed. Seeking review amounted to asking the court to sit on appeal against a ruling of a judge of concurrent jurisdiction; the proper remedy was an appeal to the Court of Appeal. The court also held, citing African Airlines International Ltd v PTA Bank, that the right of appeal was not lost by the earlier review application. The application was dismissed entirely with no orders as to costs, each party bearing its own costs.

Key legal issues

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01

Whether the Ruling of 5th December 2019 contained an error apparent on the face of the record warranting review

Holding

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

Reasoning

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.

p. 4
02

Whether review is the appropriate remedy against a ruling of a judge of concurrent jurisdiction

Holding

No; the proper remedy is an appeal to the Court of Appeal

Reasoning

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.

p. 4
03

Whether the applicants' right of appeal was lost by having sought review at the lower court

Holding

Not tenable; the right of appeal was not lost due to the review application

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion Application dated 18th June 2021 is dismissed entirely
  2. 2.No orders as to costs; each party to bear its own cost

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 63(c)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (6)

  • National Bank of Kenya vs Ndungu Njau
    Civil Appeal No. 2111 of 1996
  • Republic vs Advocates Disciplinary Tribunal Exparte Apollo Mboya
    (2019) eKLR
  • Attorney General & O'rs vs Boniface Byanyima
  • Levi Outa vs Uganda Transport Company
  • Executive Committee Chelimo Plot Owners Welfare Group & 288 Others vs. Langat Joel & 4 Others (sued as Management Committee of Chelimo Squatters Group
    (2018) eKLR
  • African Airlines International Ltd v Eastern & Southern African Trade & Development Bank (PTA BANK)
    [2003] KLR 140 or (2003) 1 EA 1
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

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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, "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.