Watamu Men Fridays Limited v Attorney General & 4 others (Environment & Land Case 104 & 4 of 2019 (Consolidated)) [2025] KEELC 4786 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain review where a Notice of Appeal has been filed
The mere filing of a notice of appeal does not bar an application for review; the appeal is only instituted upon lodging the record of appeal, fees and security. Since the applicant had taken no further step, the review application was properly before the Court.
The Court considered the conflicting Court of Appeal decisions in Kisya Investments and Yani Haryanto and preferred Yani Haryanto, holding that a notice of appeal is merely a notification of intention and a jurisdictional gateway, not an instituted appeal. Absent evidence of prosecution of the intended appeal, the High Court retains jurisdiction to hear the review.
Whether the impugned ruling of 18/12/2024 should be reviewed and set aside for error apparent on the face of the record
No. The Court had in fact considered the Court of Appeal's order, and the applicant's complaints were matters for appeal, not review.
The applicant alleged the Court ignored the order in Civil Appeal No. 67 of 2016 directing rectification of title to Plot 103. On perusal, the impugned ruling had noted the issue, albeit by reference to Civil Appeal No. 81 of 2016. The substance was considered, so no self-evident error was demonstrated; the issues belonged on appeal, making the application a disguised appeal.
Legal principles established
#- A notice of appeal does not in itself constitute an appeal; until the appeal is formally instituted by filing the record of appeal, the High Court retains jurisdiction to entertain an application for review
- A party cannot simultaneously pursue both an appeal and a review of the same decision; the two remedies are mutually exclusive
- An error apparent on the face of the record must be self-evident and not require elaborate argument; a court cannot sit on appeal over its own decision by way of review
Court orders
#- 1.The application dated 28/1/2025 is dismissed with costs to the Respondents
- 2.The matter shall be mentioned on 26th October 2025 for further directions
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules; Articles 10, 25(d), 47, 48, 50 & 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watamu Men Fridays Limited v Attorney General & 4 others (Environment & Land Case 104 & 4 of 2019 (Consolidated)) [2025] KEELC 4786 (KLR)", Case Analysis (2025). Notice of Motion dated 28/1/2025 (arising from Civil Appeal No. 67 of 2016 / contempt proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4786/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.