Kang’ara v Kuria & another (Civil Appeal 243 of 2023) [2026] KEHC 7322 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7322 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT THIKA CIVIL APPEAL 243 OF 2023 TW OUYA, J MAY 28, 2026 BETWEEN MAGDALENE WANJIRU KANG’ARA ................................................ APPELLANT AND JOHN KARIUKI KURIA ............................................................. 1ST RESPONDENT ALICE WAIRIMU WANJIRU ...................................................... 2ND RESPONDENT RULING 1. This ruling relates to the Notice of Motion dated 15th December 2025 in which the Applicant seeks review of this Court’s judgment delivered on 6th November 2025 on the ground of an error apparent on the face of the record. 2. The Applicant contends that the Court inadvertently omitted several properties from the final distribution orders and misdescribed others, thereby warranting review under Order 45 Rule 1 of the Civil Procedure Rules. 3. The Respondent opposed the application and stated that a Notice of Appeal dated 30th December 2025 had already been filed, thereby divesting this Court of jurisdiction to entertain the review application. 4. The issue for determination is whether this Court retains jurisdiction to entertain an application for review once a Notice of Appeal has been filed. 5. Order 45 Rule 1 of the Civil Procedure Rules permits a court to review its judgment on account of discovery of new evidence, an error apparent on the face of the record, or other sufficient reason. However, the said provision is only applicable where no appeal has been preferred. 6. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR held that a review is not an appeal in disguise and can only be granted within the strict confines of the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7322/eng@2026-05-28 1
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7. Further, in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, the court held that once a notice of appeal has been filed, the jurisdiction of the High Court to entertain review is curtailed. 8. In Equity Bank Limited v West Link Mbo Limited [2013] eKLR, the Court of Appeal emphasized that the filing of a notice of appeal signals the commencement of the appellate process and removes the matter from the jurisdiction of the High Court. 9. Jurisdiction is everything, as was held in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, and without it, a court must down its tools. 10. In the present case, it is not disputed that the Respondent has already filed a Notice of Appeal. The effect of that notice is that the appellate process has been triggered and this Court cannot entertain a parallel review application as to do so would result in this Court sitting on appeal over its own decision, which is impermissible in law. 11. Consequently, this Court lacks jurisdiction to determine the application for review. 12. Accordingly, the Notice of Motion dated 15th December 2025 is hereby struck out. 13. There shall be no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 28TH DAY OF MAY 2026. HON. T. W. OUYA, OGW JUDGE In the presence of: Ms. Waithira Mwangi for Applicant/Appellant Mr. S. Soita for Respondent Hamza – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7322/eng@2026-05-28 2
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