Karugu v Karugu & 4 others (Environment & Land Case 397 of 2017) [2024] KEELC 1824 (KLR)
The bottom line
#A Kenyan court struck out a review application because the applicant had already filed an appeal against the same judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the criteria for review of a judgment under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules has been met, in circumstances where the applicant has lodged an appeal against the same judgment
Key legal issues
#Whether review lies where the applicant has already lodged an appeal against the same judgment
No. The applicant filed a notice of appeal on 16/12/2021 and sought stay pending appeal, then sought review more than two years later without demonstrating withdrawal of the appeal; pursuing both mechanisms concurrently is an abuse of court process.
The court held that review is available only to a party who has elected not to appeal. The applicant filed a notice of appeal and obtained stay orders pending appeal, then remained silent about the appeal while invoking review 22 months later. She was obliged to show she had withdrawn the appeal. Concurrent pursuit of review and appeal is an abuse of process, per the Supreme Court in University of Eldoret v Hosea Sitienei.
Whether the discovery of alleged new evidence (error on the Green Card regarding trusteeship) satisfied the review criteria
The court did not reach the merits because the application failed at the threshold for abuse of process.
Although the applicant contended that discovery of a rectified error on the mother Green Card constituted new and important matter, the court disposed of the application on the antecedent question of election between appeal and review, finding the application an outright abuse of the process of the court. The respondents also contended the evidence was not new and due diligence was not shown.
Legal principles established
#- Review under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules is available only to a party who has elected not to prefer an appeal; a litigant cannot concurrently pursue both mechanisms.
- Where a litigant has more than one option of redress, the choice must be made in advance and the unchosen option is no longer available or held in abeyance.
Court orders
#- 1.The application dated 17/1/2024 is struck out for being an abuse of the process of the court
- 2.The applicant to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Relief refused
#Review of the judgment of Gacheru J under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (prayer 5)
The applicant had already lodged a notice of appeal against the same judgment and could not concurrently pursue review and appeal; the application was an abuse of process. Interim prayers (1, 2, 3, 4, 6 and 7) were spent.
Costs
The applicant will bear costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The review mechanism is not available to a party who has preferred an appeal. Indeed, our superior courts have been categorical that pursuing the two mechanisms concurrently is an outright abuse of the process of the court.
She was under an obligation to demonstrate to this court that she withdrew her notice of appeal and elected to pursue a review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
For the above reasons, the application dated 17/1/2024 is struck out for being an abuse of the process of the court. The applicant will bear costs of the application.
Issues in the judgment
#The judgment inconsistently labels the parties: the pleading reliefs refer to 'plaintiff' and 'defendants', the notice of motion refers to 'applicant' and 'respondents', and the relief sought is described as against 'the 2nd defendant' although the property was to be transferred to the 2nd defendant; the caption also contains typographical errors ('plaintifi').
The respondents are numbered 1st to 4th in the ruling but only the 1st (John Njenga Karugu) and 2nd defendants are clearly identified in the reliefs; the identities of the 3rd and 4th respondents are not stated in the extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karugu v Karugu & 4 others (Environment & Land Case 397 of 2017) [2024] KEELC 1824 (KLR)", Case Analysis (2024). Originating Summons dated 17/12/2014 (as amended on 27/3/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1824/eng@2024-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.