Mashele v Wanzetse & another
The bottom line
#A Kenyan landowner who filed a Notice of Appeal cannot also ask the same court to review its final judgment — the appeal choice closes the review door.
What this practically means
#Executive summary
#Key legal issues
#Whether a final judgment after full trial can be set aside other than by review or appeal
No. The judgment of 8th June 2022 was a final judgment after all parties were heard; it is not amenable to Order 10, 12 or 36 and there is no provision for setting aside a final judgment.
The court distinguished default/ex-parte judgments, where the court retains a wide discretion to set aside, from final judgments on the merits. Relying on Kenya Power & Lighting Co Ltd v Benzene Holdings, it held the only routes are review under Order 45 or appeal under Order 42. The setting-aside remedy sought was therefore unavailable to the plaintiff.
Whether review is available where a Notice of Appeal has been lodged
No. Lodging a Notice of Appeal closes the route to review; a party cannot pursue both simultaneously.
Section 80 and Order 45 Rule 1(1) permit review only where no appeal has been preferred. The plaintiff lodged a Notice of Appeal on 17th June 2022. Following Karani v Kijana and Otieno Ragot Advocates v National Bank of Kenya, the court held review was ousted and struck out the application as incompetent.
Whether the application would succeed on its merits
No. The plaintiff was re-litigating the merits and faulting the trial judge's appreciation of law and evidence, which is a ground of appeal, not review.
The plaintiff's claim of error apparent on the face of the record merely re-argued how he purchased the land and obtained title. Citing Abasi Belinda v Fredrick Kangwamu and Pancras T. Swai v Kenya Breweries, the court held that allowing review on grounds of legal error would expose appealable decisions to attack in courts that are functus officio.
Costs of the application
Although costs follow the event, the successful defendants were denied costs because of the plaintiff's documented medical condition (technical blindness).
The court exercised discretion to deny the defendants costs, noting the plaintiff's Kakamega hospital document describing him as technically blind and needing rehabilitative care, and that Omollo J had also made no order as to costs.
Legal principles established
#- The Civil Procedure Rules contain no provision for setting aside a final judgment; a party aggrieved by a final judgment may only seek review under Order 45 or appeal
- Once an appeal is taken by lodging a Notice of Appeal, the remedy of review is ousted
- An erroneous view of evidence or law is a ground of appeal, not a ground for review
Court orders
#- 1.The Notice of Motion dated 2nd January 2023 is dismissed
- 2.Each party shall meet their own costs
- Jurisdiction invoked
- Sections 1A, 1B, 3B and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court that passed the decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mashele v Wanzetse & another", Case Analysis (2023). Environment & Land Case 53 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21642/eng@2023-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.