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ELCDismissedNot stated in the judgment· [2025] KEELC 6992 (KLR)

Kipteng & another v Paro (Environment and Land Appeal E018 of 2024) [2025] KEELC 6992 (KLR)

High Court of Kenya
9 October 2025
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Michael Lesame Kipteng and Kenneth Kipteng moved the court by Notice of Motion dated 17 June 2025 seeking leave to file an appeal out of time against the judgment and decree of Hon. W.C Waswa SRM delivered on 29 February 2024, leave for their new advocates to come on record, and a stay of execution including eviction orders issued on 21 February 2025, pending the intended appeal. They attributed the delay to non-communication by their previous advocates. The respondent, Anthony Leteipa Paro, opposed, contending the application breached Order 42 Rule 6 of the Civil Procedure Rules, that there was unexplained and unreasonable delay, and that a memorandum of appeal had already been filed out of time without leave and struck out. The court noted undisputed facts: the judgment was delivered on 29.02.2024; a review application was filed and dismissed on 5 July 2024; a memorandum of appeal was filed on 17 July 2024 and was found in a ruling of 17.12.2024 to have been filed contrary to section 79G of the Civil Procedure Act. Framing three issues, the court held that the Applicants' delay of over 15 months was unexplained, as their review application proved they knew of the judgment, making the advocate-negligence claim a red herring. Relying on authority that a litigant must elect between review and appeal, the court held the Applicants, having filed for review, lost the right of appeal against the same judgment. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the application for extension of time and stay of execution was merited

Holding

The application was unmeritorious and was dismissed

Reasoning

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.

p. 4
02

Whether a party who has applied for review of a judgment can still appeal against it

Holding

No - the right of appeal is lost once review is elected

Reasoning

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.

p. 4
03

Whether the delay of over 15 months was sufficiently explained

Holding

It was not

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 17th June 2025 was dismissed
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 80
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 45
  • Land Registration Actsections 24, 25, 26 and 27

Cases cited (4)

  • Nicholas Salat v IEBC & 7 Others
  • Paul Musili Wambua v Attorney General & 2 Others
  • Martha Wambua v Irine Wanjiku Mwangi and Another
  • Gerald Kithu Muchange v Catherine Muthoni Ngare and Another
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

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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, "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.