Jared Omondi Ober & 2 others v County Government of Homa Bay
The bottom line
#A Kenyan court ruled that once you ask a court to review its own decision, you lose the right to appeal that same decision.
What this practically means
#Executive summary
#Key legal issues
#Whether a party who sought and was refused review may thereafter appeal against the order sought to be reviewed
No. Review and appeal are not simultaneously available; having exhausted review, the party cannot appeal the same order.
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 allow review only of a decree or order from which no appeal has been preferred. The options are mutually exclusive. The appellants applied for review of the 16th March 2022 judgment, which was dismissed on 8th June 2022; they cannot now appeal against that judgment.
Whether the appellants had capacity to prosecute the appeal
No. The suit at trial was filed by John Odoyo Owino and Philip Otieno Owuor, who are not the appellants; the discrepancy was unexplained.
The trial suit was instituted by different persons. The appellants produced no notices or written authorisation to represent the parties, and the discrepancy in identity was never explained. They are strangers to the proceedings and lack capacity to appeal.
Whether the application for review met the threshold in Order 45 Rule 1
No. No new and important matter, no error apparent on the face of the record, and no other sufficient reason was demonstrated.
The court endorsed the trial magistrate's finding that the review application disclosed no new and important matter or evidence not obtainable with due diligence, and no mistake or error apparent on the face of the record warranting review.
Whether the record of appeal was complete
No. The record was incomplete in contravention of Order 42 Rule 13(4)(f) of the Civil Procedure Rules, 2010.
The memorandum of appeal purported to challenge the judgment of 16th March 2022 rather than the ruling of 8th June 2022 dismissing the review application, rendering the appeal defective and the record incomplete.
Legal principles established
#- Review and appeal are mutually exclusive remedies; once a party opts for review and it is rejected, the party cannot appeal against the same order.
- A stranger to the trial proceedings lacks capacity to prosecute an appeal arising from them.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- Homa Bay Chief Magistrate's Court (Environment and Land Case No. 83 of 2018)
- ELC No. 83 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's ruling (appeal against dismissal of an application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Omondi Ober & 2 others v County Government of Homa Bay", Case Analysis (2023). Appeal E023 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21760/eng@2023-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.