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Court of AppealDismissedCivil Appeal No. 167 of 2006 (application for review and stay of execution)· [2024] KECA 306 (KLR)

Benson Irungu Mbaria & 1 other v Enock Irungu

Court of Appeal of Kenya
15 March 2024
2,457 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a nine-year-late attempt to review a 2015 judgment, confirming litigants cannot switch routes after choosing to seek a Supreme Court appeal.

What this practically means

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Executive summary

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This Court of Appeal decision determines two applications arising from its own judgment of 25th March 2015 in Civil Appeal No.167 of 2006, in which it had found for the respondent and revoked the applicants' title to Nairobi/Block 83/1223. The applicants, Benson Irungu Mbaria and Muchangi Nduati Mugo for the Embakasi Welfare Society, sought review of that judgment on the basis of purportedly newly discovered evidence - a Certificate of Lease, receipts and survey map information - and, pending the review, a stay of execution to forestall eviction pursuant to a decree. By directions of 20th February 2017 the two applications were set down for joint hearing. The court held that the stay application was rendered superfluous, being interlocutory relief subsumed in the substantive review. On the review, the court found the purported new evidence was not in fact new: the title was issued in November 2005 and was admittedly not part of the High Court record, and the applicants neither sought nor obtained leave to adduce additional evidence on appeal. Further, having unsuccessfully sought certification to appeal to the Supreme Court, the applicants had elected their remedial route and could not abandon it to revert to review; the attempt to cherry-pick procedures was an abuse of process, review being ousted once an appeal is taken. The review jurisdiction must be invoked with circumspection and does not permit a re-hearing aimed at a different result. The applications were dismissed with costs to the respondent, following the event.

Key legal issues

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01

Stay of execution pending review

Holding

Stay of execution pending the review application was refused as superfluous, the interlocutory relief being subsumed in the substantive review application.

Reasoning

By the court's directions of 20th February 2017, the stay and review applications were to be determined together as they relate to the same subject matter. Given the joint hearing, the stay application, which by its nature sought interlocutory relief pending review, added nothing and was subsumed in the substantive determination of the review.

p. 3
02

Review of the Court of Appeal's own judgment on grounds of newly discovered evidence

Holding

Review was refused: the documents said to be new were available at or before the hearing, no explanation was given for their non-production, and no leave to adduce additional evidence had been sought.

Reasoning

The Certificate of Lease was issued on 23rd November 2005, long before the judgment, and the applicants conceded it was not before the High Court. Additional evidence on appeal requires leave, and none was sought. The review jurisdiction must be exercised with circumspection and is not a vehicle to re-hear a conclusively determined matter.

p. 3
03

Election of remedial route and abuse of process

Holding

Having elected to pursue certification to the Supreme Court and failed, the applicants could not abandon that path and seek review of the same judgment; the attempt was an abuse of court process.

Reasoning

Upon delivery of the judgment the applicants had two options - review or appeal to the Supreme Court. They chose the latter. Once the election is made and undertaken, the other option is lost, and allowing a switch would prolong litigation and defeat finality, consistent with the principle in Karani that once an appeal is taken, review is ousted.

p. 4

Legal principles established

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  • A litigant who elects one mode of resolving the dispute (e.g. seeking certification to appeal to the Supreme Court) cannot abandon that route and revert to an alternative such as review; once an appeal is taken, review is ousted.
  • Additional evidence cannot be produced before the Court of Appeal unless it formed part of the record before the High Court, and leave of the court is required to adduce additional evidence on appeal.
  • The Court's residual jurisdiction to review its own decisions must be invoked with circumspection and does not permit a re-hearing to achieve a different result.

Court orders

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  1. 1.The application for stay of execution is rendered superfluous, being subsumed in the review application
  2. 2.The applications are dismissed
  3. 3.Costs to the respondent, following the event
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 167 of 2006
Jurisdiction invoked
Inherent residual jurisdiction of the Court of Appeal to review its own decisions under the Court of Appeal Rules, 2010 made under section 5(2) of the Appellate Jurisdiction Act

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, "Benson Irungu Mbaria & 1 other v Enock Irungu", Case Analysis (2024). Civil Appeal No. 167 of 2006 (application for review and stay of execution). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/306/eng@2024-03-15

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