Kalume v Barasa (Civil Appeal 2 of 2018) [2023] KEELC 449 (KLR)
The bottom line
#The High Court in Malindi refused to review its own decision, confirming that unhappy parties must appeal rather than file repeated review applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of motion qualified for review under Section 80 CPA and Order 45 Rule 1
No. No error apparent on the face of the record or new and important matter was demonstrated; the application was an abuse of process and a delaying tactic; the correct remedy was an appeal.
The court applied Section 80 CPA and Order 45 Rule 1, and adopted the principles in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya that review is confined to the enumerated grounds and that 'any other sufficient reason' must be read in light of those grounds. The Applicant had already filed two similar applications; the application dated November 4, 2021 was expunged because the notice of change of advocates was unprocedural and unserved, and no new ground justified review.
Whether Khaminwa & Khaminwa Advocates were properly on record without leave under Order 9 Rule 9
The court had previously found the firm improperly on record for failure to apply for leave, and the attached notice of change had not been served on the concerned parties; no basis to disturb that finding was shown.
The Applicant argued that Order 9 Rule 9 did not apply because the Respondent was acting in person in Mombasa BPRT Case No 35 of 2017 and the appeal was pending. The Respondent countered that the firm was improperly on record for failing to apply for leave. The court noted the earlier order expunging the application because the notice of change was unprocedural and unserved, and found no reviewable error in that decision.
Whether a stay of sentencing for contempt should issue
No. The prayer was res judicata, having been sought and determined in the applications dated June 24, 2021 and November 4, 2021.
The Respondent demonstrated that identical stay orders had been litigated and determined twice before. Re-litigating them through the present application constituted an attempt to have the court sit on appeal over its own decision, contrary to the principles against abuse of process, and the application was dismissed with costs.
Legal principles established
#- A court may review its decision only on the grounds enumerated in Order 45 Rule 1 of the Civil Procedure Rules and not otherwise; an order aggrieving a party should be challenged on appeal, not by repeated review applications.
Court orders
#- 1.The Notice of Motion dated January 21, 2022 is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (application for review); the judgment does not state the constitutional or appellate basis of the underlying appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalume v Barasa (Civil Appeal 2 of 2018) [2023] KEELC 449 (KLR)", Case Analysis (2023). Civil Appeal No 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/449/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.