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ELCDismissedSiaya PMCC MCL & E No. 50 of 2018 (related application dated 15th July 2019)· [2019] KEELC 8 (KLR)

Michael Afudho Aoko v Joab Oduor Otieno & 2 others [2019] KEELC 8 (KLR)

Environment and Land Court
20 December 2019
824 words in judgment
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The bottom line

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A Kenyan court confirmed you cannot pursue review and appeal of the same judgment at once — once you appeal, review is off the table.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Siaya (A. O. Ombwayo, J) on an application dated 15th July 2019 by the Appellant seeking transfer of the original file in Siaya PMCC MCL & E No. 50 of 2018 to the Siaya Principal Magistrate's Court for hearing and determination of a Notice of Motion dated 15th May 2019 seeking review of the lower court's judgment, which had ordered permanent injunction and eviction. The Appellant argued that the judgment contained errors apparent on the face of the record, notably that the court failed to consider his continuous occupation of the suit property since 1998 and claimed rights by adverse possession, and that review, not appeal, was the proper avenue given lack of proper representation. The Respondent opposed, contending the application was an attempt to unprocedurally appeal a decision that had been heard on merit. The court framed two issues: whether a review application filed after lodging an appeal is competent, and whether the transfer should be allowed. Relying on Order 45 Rule 1 and the authorities of African Airlines International Ltd and Rosemary Wanjiru Njiraini, the court held that a review application filed after a substantive appeal is lodged is a nullity while the appeal subsists. The Applicant had lodged his appeal on 22nd June 2018, before the review application. Allowing review while an appeal was underway would be an abuse of process. The application was dismissed with costs.

Key legal issues

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01

Whether an application for review filed after lodging an appeal is competent

Holding

An application for review filed after a substantive appeal has been lodged is incompetent and a nullity so long as the appeal subsists. Under Order 45 Rule 1, review lies from a decree or order from which no appeal has been preferred; once a substantive appeal is filed the right of appeal has been exercised and review is no longer available.

Reasoning

The court relied on Order 45 Rule 1 of the Civil Procedure Rules and on the Court of Appeal decision in African Airlines International Ltd v Eastern and Southern African Trade and Development Bank, which held that a review application should be filed before an appeal is lodged, and that once an appeal is heard the review cannot be proceeded with. The court also cited Rosemary Wanjiru Njiraini, holding that a party who files a substantive appeal cannot also seek review. The Applicant lodged the appeal on 22nd June 2018, before the review application dated 15th May 2019.

p. 2
02

Whether the application for transfer of the lower court file ought to be allowed

Holding

Having found the review application to be a nullity, the application for transfer must fail. The Applicant's options were to withdraw or terminate the appeal to pursue review, or abandon review and continue with the appeal.

Reasoning

The court reasoned that allowing a review of the lower court judgment while an appeal from the same judgment was already underway would be an abuse of the court's process. The transfer sought had no competent purpose to serve since the underlying review application was incompetent. The application was therefore dismissed with costs.

p. 2

Legal principles established

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  • A party who has lodged a substantive appeal cannot pursue an application for review of the same decree; a review application filed after a substantive appeal is lodged is a nullity while the appeal subsists
  • A litigant cannot simultaneously pursue review and appeal from the same judgment; doing so is an abuse of the court's process

Court orders

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  1. 1.The application dated 15th July 2019 seeking transfer of the original file Siaya PMCC MCL & E No. 50 of 2018 to the Siaya Principal Magistrate's Court for hearing and determination of the Notice of Motion dated 15th May 2019 was dismissed
  2. 2.Costs of the application awarded to the Respondent
On appeal from
Siaya Principal Magistrate's Court
SIAYA PMCC MCL & E NO. 50 of 2018
Jurisdiction invoked
Appellate/supervisory jurisdiction of the Environment and Land Court over the Siaya Principal Magistrate's Court; application for transfer of the lower court file

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, "Michael Afudho Aoko v Joab Oduor Otieno & 2 others [2019] KEELC 8 (KLR)", Case Analysis (2019). Siaya PMCC MCL & E No. 50 of 2018 (related application dated 15th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/8/eng@2019-12-20

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