Kubai (Suing as the Legal Administrator/Representative of the Estate of Gabriel Kubai King'ori) v King'ori & 2 others (Sued as the Legal Administrators/Representatives of the Estate of Maria Gatitu King'ori) (Environment & Land Case E019 of 2024) [2025] KEELC 3281 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal bars an application for review
A notice of appeal is only deemed an appeal for the limited purposes of Order 42 Rule 6(4) (stay of execution); it does not constitute an appeal for purposes of Order 45 Rule 1 review, so it does not bar review
Order 42 Rule 6(4) deems a notice of appeal an appeal solely for stay applications. The Court of Appeal in Multichoice v Wananchi confirmed the deeming is a statutory fiction limited to that rule. Review is ousted only where an actual appeal is pending; a notice of appeal alone leaves the applicant free to apply for review.
Whether an error or mistake apparent on the face of the record was established
No: the learned judge had considered and determined the res-judicata plea in paragraphs 32, 33 and 50 of the impugned ruling, so the Applicant's grievance is at most an erroneous decision, appealable but not reviewable
An error apparent on the face of the record must be self-evident and visible at a glance, per Nyamogo & Nyamogo v Kogo and National Bank of Kenya v Ndungu Njau. Where the court adopted a possible view, there is no error apparent. Since res-judicata was expressly considered and rejected, the Applicant's remedy was appeal, not review; the application is a disguised appeal to a court of coordinate jurisdiction, which is impermissible.
Whether sufficient cause and the court's inherent jurisdiction could ground review
No: the application was founded solely on error apparent on the face of record; a party cannot sidestep an unpleaded ground, and inherent jurisdiction cannot be deployed where a clear statutory provision (Section 80 and Order 45) governs review
The only application before the court was anchored on error apparent on the face of the record. The 3rd Defendant could not smuggle in a 'sufficient cause' ground without filing its own application. Section 80 of the Civil Procedure Act and Order 45 exhaustively govern review, so invoking inherent jurisdiction under Section 3A would violate the doctrine of departure, as held in Konosi v Flamco.
Legal principles established
#- A notice of appeal is not an appeal and does not bar an application for review under Order 45 Rule 1
- A court cannot sit on appeal over a decision of a court of concurrent jurisdiction, nor grant review where the remedy is appeal
- Inherent jurisdiction cannot be invoked where there are adequate statutory provisions, such as Section 80 and Order 45 governing review
Court orders
#- 1.The Application dated the 14th February 2025 is dismissed
- 2.Costs of the application awarded to the Plaintifi/Respondent only
- Jurisdiction invoked
- Sections 80 and 1A, 1B, 3A of the Civil Procedure Act (Cap 21) and Orders 45 and 51 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kubai (Suing as the Legal Administrator/Representative of the Estate of Gabriel Kubai King'ori) v King'ori & 2 others (Sued as the Legal Administrators/Representatives of the Estate of Maria Gatitu King'ori) (Environment & Land Case E019 of 2024) [2025] KEELC 3281 (KLR)", Case Analysis (2025). Meru Environment and Land Case No. E019 of 2024 (Notice of Motion dated 14th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3281/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.