Ntabo & another v Chweya (Environment and Land Appeal E023 of 2023) [2025] KEELC 5725 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you cannot ask a court to review its own judgment while simultaneously appealing that same judgment to a higher court.
What this practically means
#Executive summary
#Key legal issues
#Availability of review where an appeal is pending
Review under Section 80 of the Civil Procedure Act is only available to a party who has not preferred an appeal; filing review while an appeal is pending is an abuse of process.
Section 80 confines review to decrees or orders from which no appeal has been preferred where an appeal is allowed. The appellants had filed Kisii ELCA No. 25 of 2019 against the judgment before moving for review, and the appeal's pendency was never disputed. Both proceedings could not be maintained simultaneously, so the trial Magistrate rightly dismissed the review application.
Res judicata as between successive review applications
The second review application, based on the surveyor's conviction, raised the same issue as the first dismissed application and was therefore res judicata.
The first review application had already raised the surveyor's professional qualification and was dismissed on the basis that the issue could have been tested at cross-examination. The subsequent conviction did not change that reasoning; only an appeal against the first ruling could. Re-litigating the same ground by a second review application was barred.
Scope of the appeal before the court
The appeal was against the review ruling only, not the trial judgment, so the court could not reassess trial evidence.
The judge clarified at the outset that the appeal challenged the ruling dismissing the second review application, not the judgment of 10 September 2019. Submissions about trial evidence, including the evidence of Britinus Ongangi and the surveyor's role in the mutation, were therefore outside the scope of the appeal.
Legal principles established
#- A party who has filed an appeal cannot simultaneously maintain an application for review of the same decree or order.
- A second application for review raising the same ground as a dismissed first application is res judicata.
Court orders
#- 1.The appeal by the 2nd appellant is dismissed
- 2.The 2nd appellant to pay the costs of the appeal, the 1st appellant having withdrawn from it
- On appeal from
- Chief Magistrates' Court at Kisii
- Kisii CMCC No. 96 of 2018 (ruling of 5 December 2023)
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act over appeals from the Magistrates' Court (appeal against ruling dismissing application for review under Section 80 of the Civil Procedure Act, Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ntabo & another v Chweya (Environment and Land Appeal E023 of 2023) [2025] KEELC 5725 (KLR)", Case Analysis (2025). Kisii ELCA No. 25 of 2019 (appeal from ruling of 5 December 2023 in Kisii CMCC No. 96 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5725/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.