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ELCDismissedAppeal E023 of 2022

Jared Omondi Ober & 2 others v County Government of Homa Bay

Environment and Land Court at Homa Bay
27 November 2023
2,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that once you ask a court to review its own decision, you lose the right to appeal that same decision.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Homa Bay against a ruling of Principal Magistrate T. M. Olando delivered on 8th June 2022 in Homa Bay CM ELC No. 83 of 2018, dismissing the appellants' application for review of the judgment of 16th March 2022, in which the trial court had dismissed a claim by two traders against the County Government of Homa Bay over demolition of trading structures and eviction. The three appellants, who were not the plaintiffs at trial, advanced eight grounds contending that a controlled tenancy existed, that statutory termination notices under the Business Premises Tribunal Act were not issued, and that the eviction and destruction of property were illegal and unconstitutional. They sought declarations of illegality, compensation and costs. The respondent contended the appellants lacked capacity, that the review application was properly dismissed, and that the memorandum of appeal challenged the judgment rather than the review ruling, rendering the record incomplete under Order 42 Rule 13(4)(f). Ongondo J held that review and appeal are mutually exclusive remedies under Section 80 of the Civil Procedure Act and Order 45; having exhausted review, the appellants could not appeal the same order. The court further found the record of appeal incomplete and the appellants, being strangers to the trial proceedings, devoid of capacity. The appeal was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants have capacity to institute and prosecute the appeal
  2. 2.Whether the appellants satisfied the grounds for grant of an order of review
  3. 3.Whether the appeal is deserving of the orders sought in the memorandum of appeal
  4. 4.Who should bear the costs of the appeal

Key legal issues

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01

Whether a party who sought and was refused review may thereafter appeal against the order sought to be reviewed

Holding

No. Review and appeal are not simultaneously available; having exhausted review, the party cannot appeal the same order.

Reasoning

Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 allow review only of a decree or order from which no appeal has been preferred. The options are mutually exclusive. The appellants applied for review of the 16th March 2022 judgment, which was dismissed on 8th June 2022; they cannot now appeal against that judgment.

p. 4
02

Whether the appellants had capacity to prosecute the appeal

Holding

No. The suit at trial was filed by John Odoyo Owino and Philip Otieno Owuor, who are not the appellants; the discrepancy was unexplained.

Reasoning

The trial suit was instituted by different persons. The appellants produced no notices or written authorisation to represent the parties, and the discrepancy in identity was never explained. They are strangers to the proceedings and lack capacity to appeal.

p. 5
03

Whether the application for review met the threshold in Order 45 Rule 1

Holding

No. No new and important matter, no error apparent on the face of the record, and no other sufficient reason was demonstrated.

Reasoning

The court endorsed the trial magistrate's finding that the review application disclosed no new and important matter or evidence not obtainable with due diligence, and no mistake or error apparent on the face of the record warranting review.

p. 4
04

Whether the record of appeal was complete

Holding

No. The record was incomplete in contravention of Order 42 Rule 13(4)(f) of the Civil Procedure Rules, 2010.

Reasoning

The memorandum of appeal purported to challenge the judgment of 16th March 2022 rather than the ruling of 8th June 2022 dismissing the review application, rendering the appeal defective and the record incomplete.

p. 4

Legal principles established

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  • Review and appeal are mutually exclusive remedies; once a party opts for review and it is rejected, the party cannot appeal against the same order.
  • A stranger to the trial proceedings lacks capacity to prosecute an appeal arising from them.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Homa Bay Chief Magistrate's Court (Environment and Land Case No. 83 of 2018)
ELC No. 83 of 2018
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's ruling (appeal against dismissal of an application for review)

Relief refused

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Quashing of the trial magistrate's ruling of 8th June 2022 and allowing the appeal

The appellants had exhausted review and could not appeal the same order; the record of appeal was incomplete; the appellants lacked capacity as strangers to the proceedings

p. 4

Declarations that the eviction and destruction of property were illegal, and compensation orders

Sought only in submissions; the appeal itself was dismissed for lack of merit and capacity

p. 5

Costs

No order as to costs - the appeal was dismissed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Once a party has opted for a review the option of an appeal cannot at the same time be available to the party.
p. 4Mutual exclusivity of review and appeal
the applicant exhausted the process of review. He cannot be permitted to now try his luck with an appeal.
p. 4Bar on appeal after failed review
the appellants lack capacity to prosecute the instant appeal as they are strangers to the present proceedings.
p. 5Capacity of appellants
Accordingly, this appeal is devoid of merit and is hereby dismissed with no order as to costs.
p. 5Final orders - dismissal

Issues in the judgment

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minor

Date of review application given inconsistently as 2022 and 2023

minor

Memorandum of appeal dated 30th July 2022 but stated as lodged on 7th July 2022

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, "Jared Omondi Ober & 2 others v County Government of Homa Bay", Case Analysis (2023). Appeal E023 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21760/eng@2023-11-27

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