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ELCDismissedMiscellaneous Application (Notice of Motion dated 27/05/2024)· [2025] KEELC 3865 (KLR)

Kimani v Gachie & 2 others (Environment and Land Miscellaneous Application E026 of 2024) [2025] KEELC 3865 (KLR)

High Court of Kenya
14 May 2025
MOMogeni
1,890 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to allow a late appeal because the party had already tried to review the same judgment—you must choose one path, not both.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 27/05/2024 brought under Sections 79G and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking leave to file an intended appeal out of time against a judgment of the Chief Magistrate's Court at Thika delivered on 6/04/2023 in an Originating Summons. The Applicant, an advocate acting for the intended Appellant, attributed the delay to the court's failure to supply an invoice and typed proceedings requested on 11/04/2023 and only released on 17/04/2024 with a Certificate of Delay, and to the intervening pursuit of a review application filed on 13/06/2023 which was dismissed by a Ruling delivered on 7/12/2023. Mogeni J framed the sole issue as whether to grant leave for an appeal to be filed out of time. The Court noted that the Applicant had consciously elected to seek review of the same judgment instead of appealing, and that under Section 80 of the Civil Procedure Act and Order 45(2) of the Rules, read with Serephen Nyasani Menge v Rispah Onsase, a party cannot apply for review and appeal from the same decree or order. Applying the Supreme Court's principle in the Salat case that extension of time is an equitable, discretionary remedy for deserving parties, the Court found the application to constitute an abuse of process and declined to exercise its discretion in the Applicant's favour. The application was dismissed with no order as to costs, as the Respondents did not participate.

Key legal issues

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01

Whether leave should be granted to file an appeal out of time

Holding

Leave refused because the Applicant had already sought and exhausted review of the same judgment, which bars a subsequent appeal, and the delay was not excusable.

Reasoning

Section 79G permits admission of an out-of-time appeal only on good and sufficient cause. Section 80 and Order 45(2) show review and appeal are mutually exclusive remedies for the same decree. The Applicant consciously elected review, which was dismissed on 7/12/2023, and only then sought to appeal. Following Serephen Nyasani Menge v Rispah Onsase, this is an abuse of process; the Salat discretion was therefore not exercised in her favour.

p. 4

Legal principles established

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  • A party cannot apply for review and appeal from the same decree or order; having exhausted review, the avenue of appeal against that judgment is closed.
  • The power to extend time is not a right but an equitable remedy available only to deserving parties at the Court's discretion.

Court orders

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  1. 1.The Applicant's Application dated 27/05/2024 is dismissed
  2. 2.No order as to costs since the Respondents did not participate
Jurisdiction invoked
Sections 79G, 95 and 3A of the Civil Procedure Act (Cap. 21) and Order 51 Rule 1 of the Civil Procedure Rules (2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimani v Gachie & 2 others (Environment and Land Miscellaneous Application E026 of 2024) [2025] KEELC 3865 (KLR)", Case Analysis (2025). Miscellaneous Application (Notice of Motion dated 27/05/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3865/eng@2025-05-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.