Njoroge (Suing as the legal representative of the Estate of Christina Wageni Mburu) v Mwangi & another (Environment and Land Miscellaneous Application E038 of 2023) [2024] KEELC 5006 (KLR)
The bottom line
#Kenya's High Court confirmed you must choose between appealing a decision or asking for a review—you cannot lose a review and then appeal the same ruling.
What this practically means
#Executive summary
#Key legal issues
#Competency of application under wrong provisions
An application will not fail solely because it was filed under wrong provisions of law
The court noted none of Rules 1, 2 and 3 of the High Court (Practice and Procedure Rules) avails a party the prayers sought, but applied the settled principle that misjoinder of statutory provisions is not fatal, citing Ashmi Investment Limited v Riakina Limited. The court therefore proceeded to the merits.
Bar on appealing a matter previously pursued by way of review
A party cannot challenge the same decision by both review and appeal; such litigation is an abuse of process
Relying on a combined reading of Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2, and the Court of Appeal decision in Daniel Gicheru Kingori & 2 Others v Wambugu, the court held that permitting a party who failed on review to attack the same judgment on appeal would open several fronts in litigation; litigation must come to an end.
Multiplicity of suits and abuse of process
The application was abusive given the existence of Thika Civil Appeal No. E048 of 2023
The Respondent demonstrated that the Applicant had already lodged an appeal against the ruling dismissing his review application, uncontroverted by the Applicant. Seeking leave to appeal out of time over the same matter therefore amounted to multiplicity of suits and abuse of court process.
Legal principles established
#- A party who opts for review of a decree or order and fails cannot thereafter appeal against the same order he sought to review
Court orders
#- 1.The Notice of Motion dated 31/11/2023 is dismissed
- 2.Costs of the application awarded to the Respondents
- On appeal from
- Thika Magistrates' Court
- MCLE 47 of 2019
- Jurisdiction invoked
- High Court (Practice and Procedure Rules of the Judicature Act Cap 8, Rules 1, 2 and 3 as invoked by the applicant; Section 80 Civil Procedure Act and Order 45 Civil Procedure Rules considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge (Suing as the legal representative of the Estate of Christina Wageni Mburu) v Mwangi & another (Environment and Land Miscellaneous Application E038 of 2023) [2024] KEELC 5006 (KLR)", Case Analysis (2024). Motion dated 31/11/2023 arising from MCLE 47 of 2019 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5006/eng@2024-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.