Boit & another v Muyesu
The bottom line
#You cannot appeal a judgment after choosing to review it first.
What this practically means
#The Supreme Court has ruled that once you ask a court to review its own decision, you lose the right to appeal that same decision to a higher court. This applies even if the review fails. The court said allowing both options would drag cases on forever and undermine the finality of judgments. In this case, the applicants had already sought review of a Court of Appeal ruling on a land dispute, so they could not later seek leave to appeal to the Supreme Court.
Executive summary
#Key legal issues
#Whether an applicant who has sought review of a Court of Appeal judgment can later seek leave to appeal against the same judgment to the Supreme Court.
No. The option to appeal is extinguished once the review route is chosen.
The Supreme Court held that allowing an applicant to pursue both review and appeal sequentially would protract litigation and defeat the finality of the judicial process. The court relied on its decision in University of Eldoret & another vs. Hosea Sitienei & 3 others, which stated that allowing a litigant to take a second option after an unsuccessful first option would contribute to protracting litigation and defeat the essence of finality.
Whether the questions raised by the applicants constitute matters of general public importance under Article 163(4)(b) of the Constitution.
No. The law on the issues raised (oral agreements, Land Control Board consent, constructive trust) is settled, and no ambiguities or uncertainties were demonstrated.
The court found that the oral agreement was made in 1997 before amendments to the Law of Contract Act, and the law on the consent from the Land Control Board and imputing of constructive trust is settled. The applicants failed to demonstrate any contradictory precedents or uncertainties in the law to warrant the exercise of the Supreme Court's jurisdiction.
Legal principles established
#- Choosing to review a Court of Appeal judgment extinguishes the right to appeal that judgment to the Supreme Court.
- A litigant cannot take a second procedural option after an unsuccessful first one on the same judgment.
- Allowing sequential review and appeal would protract litigation and defeat the finality of the judicial process.
- The law on oral agreements, Land Control Board consent, and constructive trust in land sales is settled in Kenya.
- To appeal to the Supreme Court on a matter of general public importance, you must show unresolved legal uncertainties.
- The Supreme Court will not certify an appeal if the legal questions raised are already clearly settled by precedent.
Court orders
#- 1.The Notice of Motion dated 16th July, 2024 and filed on 8th November, 2024 be and is hereby dismissed.
- 2.The applicants shall bear the costs of this Notice of Motion.
- On appeal from
- Court of Appeal of Kenya
- Civil Application No. E108 of 2021
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution
Key timeline
#Practical implications
#Strategic choice: review vs. appeal
Advise clients that pursuing a review of a Court of Appeal judgment is a final procedural election. Once filed, the option to appeal that judgment to the Supreme Court is lost, even if the review fails. Always evaluate the strength of both routes before choosing, and document the client's informed consent on the chosen path.
Finality in land and contract disputes
If you lose a Court of Appeal case on a land or contract matter, decide immediately whether to seek review or appeal. You cannot do both. This ruling reinforces that litigation must end at some point. Businesses should factor this into settlement negotiations and litigation budgets, especially in long-running disputes.
Know your legal options upfront
If you lose a case in the Court of Appeal, you have two separate paths: ask that court to review its own decision, or seek permission to appeal to the Supreme Court. But you cannot take both. Choose carefully with your lawyer's advice, because picking review first blocks any later appeal on the same judgment.
Frequently asked questions
#Can I appeal to the Supreme Court after a failed review in Kenya?+
No. The Supreme Court has ruled that once you choose to review a Court of Appeal judgment, you lose the right to appeal that same judgment. This applies even if the review is unsuccessful. You must decide which route to take before filing.
What is the difference between review and appeal in Kenyan courts?+
A review asks the same court to reconsider its own decision, usually based on new evidence or an error on the face of the record. An appeal asks a higher court to overturn the lower court's decision. In Kenya, you cannot do both for the same judgment.
What is a matter of general public importance in Kenya?+
It is a legal question that affects the public broadly, not just the parties in a case. To appeal to the Supreme Court, you must show that the law on that issue is unclear or has conflicting court decisions. If the law is already settled, the Supreme Court will not hear the appeal.
Does an oral agreement for land sale still hold in Kenya?+
Yes, but only if the agreement was made before the Law of Contract Act was amended. The law on oral land agreements, Land Control Board consent, and constructive trust is now well settled in Kenya. Courts will apply existing precedents rather than create new rules.
Cite this brief
#Cite this brief
Caselaw, "Boit & another v Muyesu", Case Analysis (2025). Application E004 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/8/eng@2025-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.