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High CourtDismissedNotice of Motion dated 25th November 2019 (Judicial Review proceedings)

Eng. Dr. Karanja Kibicho v Schon Ahmed Noorani & another (Ex Parte Applicants)

High Court of Kenya
19 June 2020
4,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Filing an appeal prevents you from simultaneously seeking a review of the same court decision in Kenya.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 25th November 2019 in which Eng. Dr. Karanja Kibicho, the Principal Secretary, Ministry of Internal Security, sought to vary, review or set aside the judgment of Muriithi J delivered on 17th October 2019, which had found him and the Solicitor General in contempt of court for failing to satisfy a judgment debt of Ksh. 821,529.58, with a default sentence of 30 days imprisonment. The applicant argued he was condemned unheard, that the orders were made without jurisdiction, that he was never served with the orders, and that committing a person to civil jail for a public debt is unconstitutional. The ex parte applicant, Schon Ahmed Noorani, opposed the application as an abuse of process, noting the applicant had already lodged a Notice of Appeal dated 31st October 2019 and was therefore inviting the court to sit as an appellate court over its own decision. Mativo J held that under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010, a litigant cannot prefer an appeal and simultaneously apply for review; on this ground alone the application collapsed. The court further reviewed the jurisprudence on review, holding that review lies only for error apparent on the face of the record - an error self-evident and requiring no elaborate argument - and that the applicant's grounds were grounds of appeal, not review. The application was dismissed with costs to the ex parte applicants.

Key legal issues

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01

Whether an application for review can coexist with a pending appeal

Holding

The application collapses because the applicant lodged a Notice of Appeal dated 31st October 2019 while simultaneously seeking review

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1 permit review only where no appeal has been preferred, or where no appeal is allowed. Since the applicant had already filed a Notice of Appeal, the application offended both provisions, and on that ground alone it failed.

p. 4
02

Whether the grounds cited qualify as grounds for review

Holding

All the grounds cited are grounds of appeal, not grounds for review; the applicant was inviting the court to sit as an appellate court on its own decision

Reasoning

The court reviewed the jurisprudence on error apparent on the face of the record, holding that such an error must be self-evident and not require elaborate argument. The applicant's complaints about jurisdiction, natural justice, service and constitutionality were merits-based challenges amounting to an appeal in disguise.

p. 6

Legal principles established

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  • A litigant cannot prefer an appeal and at the same time apply for review of the same decision
  • Review is confined to error apparent on the face of the record; a court cannot sit in appeal over its own decision

Court orders

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  1. 1.Dismissal of the first Respondent's application dated 25th November 2019
  2. 2.Costs of the application to the ex parte applicants
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)

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, "Eng. Dr. Karanja Kibicho v Schon Ahmed Noorani & another (Ex Parte Applicants)", Case Analysis (2020). Notice of Motion dated 25th November 2019 (Judicial Review proceedings). Source: 

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