Mwandaa (Suing as the Legal Representative& Administrator of the Estate of Irene Samba Mwandaa) v Kizidio (Environment and Land Miscellaneous Application E002 of 2023) (Environment and Land) [2024] KEELC 396 (KLR)
The bottom line
#A Kenyan land court refused a late appeal because choosing to seek a review of the judgment means giving up your right to appeal that same decision.
What this practically means
#Executive summary
#Key legal issues
#Whether a party who sought review of a judgment can thereafter prefer an appeal against the same decree
No. By submitting herself to review, the applicant relinquished her right of appeal; review and appeal cannot co-exist.
The court relied on Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2, which restrict review to decrees from which no appeal has been preferred, and endorsed Serephen Nyasani Menge holding that a party cannot apply for review and appeal from the same decree or order. Whether the review was merely for clarification was immaterial.
Whether the delay of over five months from judgment (44 days from the review ruling) was sufficiently explained to warrant extension of time
No. The explanation of awaiting the review ruling and sourcing funds was unreasonable, inordinate and an afterthought.
Applying Section 79G and Section 95 of the Civil Procedure Act and the Thuita Mwangi and County Executive of Kisumu criteria, the court found the delay unexplained to its satisfaction and the draft memorandum of appeal not arguable, so extension would prejudice the respondent's enjoyment of the judgment.
Who should bear the costs of the application
The Intended Respondent, as costs follow the event under Section 27 of the Civil Procedure Act.
The application failed, so the successful party was entitled to costs. The court applied the principle that costs follow the event and are compensatory of the successful party, citing Section 27 CPA and the Ihururu Dairy Farmers decision.
Legal principles established
#- A party who elects to seek review of a decree relinquishes the right to appeal against the same decree; review and appeal are mutually exclusive
- Extension of time to file an appeal out of time is discretionary and governed by the Thuita Mwangi factors
Court orders
#- 1.That the Notice of Motion application dated 5th October, 2023 be and is hereby found to be unmeritorious and hence disallowed with costs
- 2.That the costs of the application to be awarded to the Intended Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 75 and 95 of the Civil Procedure Act, Cap 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandaa (Suing as the Legal Representative& Administrator of the Estate of Irene Samba Mwandaa) v Kizidio (Environment and Land Miscellaneous Application E002 of 2023) (Environment and Land) [2024] KEELC 396 (KLR)", Case Analysis (2024). Voi MELC No. E015 of 2021 (application dated 5th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/396/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.