Dokhole & another v Usinfecha & 5 others (Environment and Land Appeal 1 of 2023) [2025] KEELC 4875 (KLR)
The bottom line
#A Kenyan court dismissed a review application because the litigant couldn't pursue an appeal and review at the same time, and filed in person without required permission.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application given failure to obtain leave to act in person
The application was incompetent. Having been represented by advocates up to and including delivery of judgment, the Applicant needed leave under Order 9 Rule 9 before filing in person, and filed the application before serving a notice to act in person under Order 9 Rule 8.
The court found the Applicant was represented until judgment and never procured leave under Order 9 Rule 9. The application was also filed before any notice of intention to act in person, breaching Order 9 Rule 8. The Applicant could have cured the defect but adopted a perfunctory, casual approach. Relying on Mumo Matemu and Nicholas Kiptoo Arap Salat, the court held procedural non-compliance vitiated the application to the root.
Jurisdiction to entertain review where a Notice of Appeal is pending
The unwithdrawn Notice of Appeal divested the court of jurisdiction to entertain the review application; a litigant cannot pursue both appeals and review simultaneously.
The Applicant had lodged a Notice of Appeal against the judgment and decree which was still in existence and had not been withdrawn. The court held that pursuing review while an appeal is pending is tantamount to playing lottery with due process, citing Order 45 Rule 1 and Otieno Rogot & Company Advocates v National Bank of Kenya Ltd.
Whether grounds for review under Order 45 Rule 1 were established
No grounds for review were established. The alleged new evidence was always in the Applicant's custody, and the matters raised were dealt with in the judgment itself.
The purported new and important evidence (the Grant ad Litem) was always in the custody of the Applicant and the 1st Appellant. The issues now raised had been highlighted by the court in the body of its judgment, so the Applicant was attempting a second bite at the cherry by using the court's own reasoning to relitigate, which the court deprecated.
Whether the finding on res judicata was an error warranting review
An erroneous conclusion on res judicata is not a mistake or error apparent on the face of the record; it can only be an erroneous exposition of the law, reviewable on appeal, not by review.
The Applicant argued the court erred in holding the suit res judicata given he was only an interested party in ELC No. 13 of 2018. The court held that even if there was an error, it does not qualify as a reviewable mistake; granting the invitation would amount to the court sitting on appeal on its own decision, an absurdity, citing National Bank of Kenya Ltd v Ndungu Njau and related authorities.
Legal principles established
#- A party who has lodged an unwithdrawn Notice of Appeal cannot simultaneously pursue review before the same court; the pending notice of appeal ousts the court's jurisdiction to entertain a review application
- An error of law committed in a judgment is not a ground for review; reviewing it would amount to the court sitting on appeal on its own decision
- An applicant for review must lay plausible evidence before the court; merely reciting the grounds is insufficient
- Failure to obtain leave of the court before acting in person after judgment goes to the root of a subsequent application and vitiates it
Court orders
#- 1.The application dated 3/6/2025 be and is hereby dismissed
- 2.Costs of the application shall be borne by the Applicant
- Jurisdiction invoked
- Sections 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dokhole & another v Usinfecha & 5 others (Environment and Land Appeal 1 of 2023) [2025] KEELC 4875 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (Applicant described as 2nd Appellant in the Appeal; related suits: Meru ELC No. 13 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4875/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.