Kuya & another v Washiko & another (Enviromental and Land Originating Summons E004 of 2020) [2024] KEELC 4792 (KLR)
The bottom line
#A Kenyan land court dismissed a bid to review orders closing a hearing, confirming you cannot pursue an appeal and a review at the same time.
What this practically means
#Executive summary
#Key legal issues
#Whether filing a notice of appeal precludes an application for review
By filing the application for review, the applicant rendered the notice of appeal purposeless and could not pursue the appeal after the review was determined; the court proceeded to determine the review on its merits.
The court noted conflicting Court of Appeal positions in Kisya Investments and Yani Haryanto, and relied on Chairman Board of Governors Highway Secondary School v William Mmosi Moi, holding that review and appeal are alternative remedies that cannot be pursued concurrently or one after the other. Since the applicant elected review, the notice of appeal was rendered purposeless, but the review still had to satisfy Order 45 grounds.
Whether an error apparent on the face of the record existed to justify review
No error apparent on the face of the record was established; the record showed the matter was properly set down for the hearing of the main suit on 1st November, 2023.
The court reviewed the record: the matter had been mentioned for Order 11 compliance on several dates, a hearing date was taken on 23rd August, 2023, and on 1st November, 2023 the court confirmed the matter was for the main hearing, disallowed an adjournment, and heard the plaintiff's witnesses before closing the defence case. The application dated 24th August, 2023 was never given a hearing date and was not served, so the alleged error did not exist.
The legal threshold for review under section 80 of the Civil Procedure Act and Order 45
Review is available only on the grounds of discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay.
Relying on Republic v Public Procurement Administrative Review Board and the Indian authority Ajit Kumar Rath v State of Orisa, the court held that section 80 confers the power while Order 45 restricts its scope; 'any other sufficient reason' must be analogous to the specified grounds, and review is not a remedy for a fresh hearing or correction of an erroneous view taken earlier.
Legal principles established
#- A person cannot exercise both the right of appeal and review at the same time in respect of the same order; where a party opts for review, the notice of appeal is rendered purposeless.
- An error apparent on the face of the record must be obvious and patent, not one established by a long-drawn process of reasoning or on which two opinions are conceivable.
Court orders
#- 1.The Notice of Motion dated 11th March, 2024 is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A & 63 of the Civil Procedure Act and Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuya & another v Washiko & another (Enviromental and Land Originating Summons E004 of 2020) [2024] KEELC 4792 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 11th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4792/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.