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ELCDismissedNaivasha MCELC Case Number E051/2022· [2025] KEELC 6765 (KLR)

Waithira v Ngari & another (Environment and Land Miscellaneous Case E005 of 2025) (Environment and Land) [2025] KEELC 6765 (KLR)

Environment and Land Court
9 October 2025
3,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled you cannot appeal a judgment after choosing review instead — the two remedies are mutually exclusive.

What this practically means

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Executive summary

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By a Notice of Motion dated 17th May 2025 under Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act and Order 42 Rule 3 of the Civil Procedure Rules, Jane Wanjiru Waithira sought leave to appeal out of time against the judgment of Hon. J. Ndeng'eri SRM delivered at Naivasha on 10th September 2024 in Naivasha MCELC E051/2022, which dismissed her suit, allowed Paul Ngari's counterclaim of Kshs 725,000, ordered transfer of Naivasha/Mwichirigiri Block 4/5374 and lifting of the caution, plus costs. She attributed the delay to the pendency of her review application, dismissed on 6th May 2025. The 1st Respondent opposed, contending she had first filed an appeal (Naivasha ELC Appeal No. E014 of 2024) which she withdrew on 24th February 2025 to pursue review, and was thereby estopped from appealing the same decree - an abuse of process amounting to forum shopping. The court, per M.C. Oundo J, framed two issues: whether an appeal out of time could lie after review was dismissed, and whether stay should issue. Relying on The Chairman Board of Governors Highway Secondary School v William Mmosi Moi and Daniel Gicheru Kingori v Wambugu, the court held that review and appeal are mutually exclusive remedies which cannot be pursued concurrently or sequentially; once the Applicant exhausted review, no appellate jurisdiction remained over the same decree. The application was dismissed with costs.

Key legal issues

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01

Whether a party who pursued review to conclusion may thereafter file an appeal out of time against the same judgment

Holding

No. Once a party elects review and it is determined, the appellate route on the same decree is closed

Reasoning

Sections 80 CPA and Order 45 Rule 1 permit review only where no appeal has been preferred or is allowed. The Applicant filed an appeal, withdrew it, pursued review, and upon its dismissal sought to re-open the appeal. Following binding Court of Appeal authority, the court held the two remedies cannot be pursued sequentially and dismissed the application.

p. 7
02

Whether stay of execution pending appeal should issue

Holding

No stay issued as the application was dismissed in its entirety for being legally barred

Reasoning

The court did not reach the Order 42 Rule 6(2) conditions because it found the application barred by the doctrine that review and appeal cannot be pursued over the same decree. The binding Court of Appeal decisions required dismissal with costs.

p. 7

Legal principles established

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  • A party cannot pursue both an appeal and review of the same decree; once review is elected and concluded, no further appellate jurisdiction lies over the same orders

Court orders

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  1. 1.The Applicant's application dated 17th May 2025 is found unmerited and dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 1A, 1B, 3, 3A
  • Civil Procedure Act Cap 21Section 79G
  • Civil Procedure Act Cap 21Section 95
  • Civil Procedure Act Cap 21Section 80
  • Civil Procedure Act Cap 21Section 27
  • Civil Procedure Act Cap 21Section 7
  • Civil Procedure Rules 2010Order 42 Rule 3
  • Civil Procedure Rules 2010Order 42 Rule 6
  • Civil Procedure Rules 2010Order 45 Rule 1
  • Civil Procedure (Amendment) Rules, 2020Order 45 Rule 1

Cases cited (8)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Cecelia Karuru Ngayu v Barclays Bank of Kenya & Another
    [2016] eKLR
  • Daniel Gicheru Kingori & 2 others v Wambugu
    [2022] KECA 1168 (KLR)
  • Njoroge (Suing as the legal representative of the Estate of Christina Wageni Mburu) v Mwangi & another
    [2024] KEELC 5006 (KLR)
  • Jawla v Kaaria & 2 others
    [2024] KEHC 15968 (KLR)
  • The Chairman Board of Governors Highway Secondary School vs. William Mmosi Moi
    [2007] KECA 85 (KLR)
  • HA v LB
    HCCC No. 188 of 2021
On appeal from
Senior Resident Magistrate's Court, Naivasha
Naivasha MCELC Case Number E051/2022
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 79G, 95 of the Civil Procedure Act Cap 21 and Order 42 Rule 3 of the Civil Procedure Rules

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, "Waithira v Ngari & another (Environment and Land Miscellaneous Case E005 of 2025)  (Environment and Land) [2025] KEELC 6765 (KLR)", Case Analysis (2025). Naivasha MCELC Case Number E051/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6765/eng@2025-10-09

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