Mbugua & another (Suing as Legal Representatives of the Estate of Lawrence Githua Mbugua - Deceased) v Kariuki & 12 others (Environment and Land Case Civil Suit 104 of 2023) [2025] KEELC 4315 (KLR)

Applying Mukisa Biscuits, the court found that whether a Notice of Appeal extinguishes the right of review and whether res judicata arises within the same proceedings are pure points of law discernible from the record. However, allegations of abuse of process and laches require interrogation of facts, delay and prejudice, and thus fall outside a proper preliminary objection. On the merits, the court adopted the Multichoice line of authority, holding that filing a Notice of Appeal does not preclude review.

The court noted that the judgment was delivered on 25th January 2024 and the Motion filed 14th October 2024, about 9 months later, with no explanation offered - an unexplained and inordinate delay under Order 45 rule 1. On the alleged new evidence, the letters allegedly existed in official county records dating to the 1980s; there was no indication the records were confidential or restricted, so the Plaintiffs could have obtained them before judgment. The application was a belated attempt at a second bite at the cherry, and in any event could not cure the limitation bar under Section 7 of the Limitation of Actions Act.