Anakletus Wambura v John Wambura & another
The bottom line
#A Kenyan court dismissed a landowner's bid to review a judgment because he had already appealed the same decision—you cannot pursue both remedies.
What this practically means
#Executive summary
#Key legal issues
#Availability of review where an appeal has been filed
Having lodged a Notice of Appeal and filed Civil Appeal No 199 of 2022, the plaintiff could not pursue review of the same judgment
Order 45 Rule 1(1) applies to a decree or order from which no appeal has been preferred. The plaintiff lodged a Notice of Appeal on 29th July 2022 and filed Civil Appeal No 199 of 2022 in Kisumu. Following Karani v Kijana and Otieno Ragot Advocates v National Bank of Kenya, once an appeal is taken, review is ousted and the matter merges in the appeal.
Distinction between grounds of appeal and grounds of review
The plaintiff's complaints about the trial judge's appreciation of evidence and law, the absence of criteria for equal division, and the unpleaded trust were matters for appeal, not review
Precedents including Abasi Belinda v Fredrick Kangwamu and Pancras T. Swai v Kenya Breweries establish that faulting a decision on a point of law or evidence is a ground of appeal. The court cannot sit on appeal over its own judgment under the guise of review, as it would then be functus officio without appellate jurisdiction.
Unreasonable delay in seeking review
A 19-month delay in filing the review application was unreasonable and disentitled the plaintiff to review
The judgment was delivered on 20th July 2022 and the application filed on 2nd February 2024. The plaintiff attributed the delay to 'intensive inquiries, investigations and research' but did not say when he traced the sale agreement, leaving the court unable to exercise discretion in his favour.
Setting aside a final judgment after full hearing
The court has no power to set aside a final judgment that was not a default judgment; the only routes are review under Order 45 or appeal
Relying on Kenya Power & Lighting Company Ltd v Benzene Holdings Ltd, the Civil Procedure Rules provide for setting aside only default judgments (Orders 10, 12 and 36). The judgment of 20th July 2022 followed a full hearing, so the prayer to set it aside had no legal basis, and the review route was closed.
Defective replying affidavit
The replying affidavit was defective because it was indicated as sworn by the 2nd Defendant but signed by the 1st Defendant, and was struck out, leaving the application unopposed
The affidavit was sworn in breach of the Oaths and Statutory Declarations Act (Cap 15), as the deponent named on the jurat differed from the person indicated in the body. However, an unopposed application must still satisfy the threshold for review, which it did not.
Legal principles established
#- Once an appeal is filed against a judgment, the remedy of review is no longer available
- An erroneous view of evidence or law is a ground of appeal, not a ground for review
- A final judgment after a full hearing cannot be 'set aside'; it can only be reviewed under Order 45 or appealed against
- An application for review must be brought without unreasonable delay
Court orders
#- 1.The Notice of Motion dated 30th January 2024 is devoid of merit and is hereby dismissed
- 2.Each party shall meet their own costs
- 3.The replying affidavit dated 4th March 2024 sworn irregularly is struck out
- Jurisdiction invoked
- Sections 3, 3A and 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anakletus Wambura v John Wambura & another", Case Analysis (2024). Notice of Motion dated 30th January 2024 (in the suit over land parcel No Samia/Bulemia/2692, Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4991/eng@2024-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.