Richard Omari Nyamatura v Daniel Ombachi Mogeni [2015] KECA 36 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you must choose between appealing or seeking review of a judgment—you cannot do both, and no second review is allowed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court could entertain a second application for review of a judgment where a first review application had been dismissed and the matter had moved to the Court of Appeal
- 2.Whether the overriding objective (sections 1A, 1B and 3A of the Civil Procedure Act) and Article 159(2)(d) of the Constitution override the bar in section 80 of the Civil Procedure Act and Order 45 Rules 1 and 6 of the Civil Procedure Rules against a second review application
Key legal issues
#Bar against a second application for review
The High Court properly struck out the second review application; Order 45 Rule 6 bars entertaining a review of an order made on a review, and section 80 of the Civil Procedure Act prohibits such an application
The appellant's first review of the 1997 judgment was dismissed by Mbaluto J on 13th August 1997; his appeal was struck out and his extension-of-time application was struck out with leave to refile, which he did not take. His 2011 application sought a second review, barred by Order 45 Rule 6 and prohibited by section 80. Having moved to the Court of Appeal, the High Court had ceased to exercise jurisdiction over the suit.
Relationship between the overriding objective, Article 159(2)(d) and specific procedural rules
Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution cannot found an application or override specific provisions such as Order 45; the overriding objective must be applied case by case and did not benefit the appellant
Sections 1A and 1B are both procedural and substantive but did not invalidate other sections of the Act and rules; a provision is displaced only by repeal. Section 3A can only be invoked where the Act and rules are silent, and Order 45 governed the application, rendering section 3A otiose. Allowing a 14-year-delayed second review would itself have violated the overriding objective's demand for timely and affordable disposal of proceedings.
Whether the surveyor's recommendation to refer the case to arbitration undermined the judgment
The recommendation could not blight the surveyor's finding that the appellant was encroaching, given the consent order requiring any encroaching party to vacate
The parties had on 4th December 1996 recorded a consent order that any party found to have encroached on another's land would vacate the same forthwith. The surveyor's report, adopted as judgment on 24th April 1997, found the appellant occupying part of the respondent's parcel 2256, so his eviction followed from the consent order. The arbitration recommendation was not a basis for reopening the judgment.
Legal principles established
#- A party aggrieved by a decree or order must elect between appeal and review; the two remedies are mutually exclusive and a second review application is barred
- Once a party has moved to the Court of Appeal against an order declining review, the High Court ceases to have jurisdiction over the matter
- The overriding objective does not invalidate other provisions of the Civil Procedure Act and Rules; where the Act and rules are not silent, section 3A cannot be invoked
- Article 159(2)(d) is not a panacea; denial of a second review after a prior review was refused and an appeal abandoned is not undue adherence to procedural technicalities
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- HCCC No. 349 of 1996
- Jurisdiction invoked
- First appeal against ruling of the High Court (ruling on preliminary objection striking out an application for review)
Relief refused
#Setting aside, review or variation of the judgment of 24th April 1997 adopting the surveyor's report, and expunging of the surveyor's report from the record
The application for review contravened section 80 of the Civil Procedure Act and Order 45 Rules 1 and 6; review and appeal are mutually exclusive; the application was made after 14 years' delay; and the overriding objective did not displace those provisions
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of our above consideration of this appeal is that the same has no merit and we dismiss it with costs to the respondent.
A party aggrieved by a decree or order must make an election as to whether to appeal or seek a review. The two are mutually exclusive. One cannot pursue both.
No application to review an order made on an application for review of a decree or order passed or made on a review shall be entertained.
By the act of the applicant moving to the Court of Appeal he knew that this court hall ceased to exercise jurisdiction over the suit and hence cannot come back again and reopen a matter that was subject of appeal.
Issues in the judgment
#Name of the Supreme Court case appears garbled in the judgment ('Raila Qdinga' rather than 'Odinga'); also a fragment of the appellant's grounds of appeal appears truncated ('the impugned Act and Article 159 (2) (d) of the Constitution')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Omari Nyamatura v Daniel Ombachi Mogeni [2015] KECA 36 (KLR)", Case Analysis (2015). Civil Appeal No. 281 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/36/eng@2015-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.