Kipteng & another v Paro (Environment and Land Appeal E018 of 2024) [2025] KEELC 6992 (KLR)
The bottom line
#The High Court in Kilgoris ruled that choosing to seek a review of a judgment cancels your right to appeal it, dismissing the applicants' late-appeal application.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for extension of time and stay of execution was merited
The application was unmeritorious and was dismissed
The judgment sought to be appealed was delivered on 29.02.2024. The Applicants filed a review application thereafter, showing they were aware of the judgment, so the plea of non-communication by previous counsel was a red herring. The application was filed on 17.06.2025, a delay of over 15 months. Further, having elected review, they lost the right of appeal against the same judgment.
Whether a party who has applied for review of a judgment can still appeal against it
No - the right of appeal is lost once review is elected
Following Martha Wambua v Irine Wanjiku Mwangi quoting Gerald Kithu Muchange v Catherine Muthoni Ngare, the court held that under section 80 and Order 45 of the Civil Procedure Rules, a litigant must elect between appeal and review. Having exercised the right of review, the Applicants lost the right of appeal against the same order, and the application for extension of time therefore had no foundation.
Whether the delay of over 15 months was sufficiently explained
It was not
The application was filed on 17.06.2025 against a judgment of 29.02.2024, a delay of more than 15 months. Applying the Nicholas Salat principles, the court found the proffered reason - non-communication by previous advocates - implausible since the Applicants had themselves filed a review and a memorandum of appeal after judgment, demonstrating awareness of the outcome.
Legal principles established
#- A litigant cannot exercise the right of appeal and at the same time apply for review of the same judgment; electing review extinguishes the right of appeal
- Extension of time is an equitable discretionary remedy requiring a reasonable, explained reason for delay, absence of prejudice to the respondent, and promptness
Court orders
#- 1.The application dated 17th June 2025 was dismissed
- 2.Costs awarded to the Respondents
- Jurisdiction invoked
- Inherent jurisdiction to extend time under section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010 (as invoked by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipteng & another v Paro (Environment and Land Appeal E018 of 2024) [2025] KEELC 6992 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6992/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.