Kimani v Gachie & 2 others (Environment and Land Miscellaneous Application E026 of 2024) [2025] KEELC 3865 (KLR)
The bottom line
#A Kenyan court refused to allow a late appeal because the party had already tried to review the same judgment—you must choose one path, not both.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether to grant leave for an appeal to be filed out of time
Key legal issues
#Whether leave should be granted to file an appeal out of time
Leave refused because the Applicant had already sought and exhausted review of the same judgment, which bars a subsequent appeal, and the delay was not excusable.
Section 79G permits admission of an out-of-time appeal only on good and sufficient cause. Section 80 and Order 45(2) show review and appeal are mutually exclusive remedies for the same decree. The Applicant consciously elected review, which was dismissed on 7/12/2023, and only then sought to appeal. Following Serephen Nyasani Menge v Rispah Onsase, this is an abuse of process; the Salat discretion was therefore not exercised in her favour.
Legal principles established
#- A party cannot apply for review and appeal from the same decree or order; having exhausted review, the avenue of appeal against that judgment is closed.
- The power to extend time is not a right but an equitable remedy available only to deserving parties at the Court's discretion.
Court orders
#- 1.The Applicant's Application dated 27/05/2024 is dismissed
- 2.No order as to costs since the Respondents did not participate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 79G, 95 and 3A of the Civil Procedure Act (Cap. 21) and Order 51 Rule 1 of the Civil Procedure Rules (2010)
Relief refused
#Leave to file the intended appeal out of time
The Applicant had already pursued and exhausted review of the same judgment; a party cannot apply for review and appeal from the same decree or order, and extension of time is an equitable discretion not deserved here.
Costs
No order as to costs since the Respondents did not participate
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.
From the above provisions it is that a party cannot apply for Review and Appeal from the same Decree or Order as is the case in this suit.
The Applicant had her day in Court when she chose to seek a review of the order that she now wishes to appeal against. Litigation somehow must come to an end
The upshot is that I find no merit in the Applicant’s Application dated 27/05/2024 and the same is ordered dismissed with no order as to costs since the Respondents did not participate.
Issues in the judgment
#The judgment inconsistently describes the Ruling date, stating in one passage it was delivered on 6/04/2023 whereas the grounds state the Judgment was delivered on 6th April 2023 and the Ruling on 7th December 2023.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Gachie & 2 others (Environment and Land Miscellaneous Application E026 of 2024) [2025] KEELC 3865 (KLR)", Case Analysis (2025). Miscellaneous Application (Notice of Motion dated 27/05/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3865/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.