Gitau v Githinji & another (Environment and Land Appeal E058 of 2023) [2025] KEELC 3893 (KLR)
The bottom line
#The Environment and Land Court dismissed the applicants' bid to review a land judgment because they had already filed a Notice of Appeal — you cannot do 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 the Court has jurisdiction to hear the review application in view of the filing of a Notice of Appeal
- 2.Whether there exists an error apparent on the face of the record
- 3.Whether the application disclosed new and important matter or evidence
- 4.Whether a Ballot Number 1069 conferred entitlement to land on Phillis Nyaguthie Gitau (Deceased)
- 5.Whether the applicants were bona fide purchasers for value of the suit property
Key legal issues
#Whether the filing of a Notice of Appeal ousts the court's jurisdiction to review its own judgment
Following the Court of Appeal's decision in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited, the filing of a Notice of Appeal deprives the court of jurisdiction to review its own decision
The court noted conflicting jurisprudence on whether a Notice of Appeal bars review, but adopted the latest Court of Appeal position that a party cannot pursue review while keeping open the option to appeal; the choice is either to appeal or to seek review, not both. The court nonetheless proceeded to consider the substance of the application for completeness.
Whether the application disclosed new and important matter or evidence
No new and important matter or evidence was disclosed; the annexures were the same as those considered at the Magistrate's Court
The Supporting Affidavit and annexures merely rehashed material that was before the trial court and the judge on appeal. The judgment itself could not be classified as new and important evidence, and the applicant did not point to evidence that was unavailable when the matter was heard. The grievances identified could only be the subject of a fresh appeal.
Whether there was an error apparent on the face of the record
No error apparent on the face of the record was established; the applicant did not even claim such an error
A review may only correct an error that is self-evident and requires no elaborate argument. The applicant did not claim an error on the face of the judgment; rather she sought to re-open the merits, which would amount to an appellate re-appraisal impermissible on review. The judge had given clear reasons for allowing the appeal based on fraud and illegality destroying bona fides.
Whether the applicants were bona fide purchasers for value
The court reaffirmed that fraud and illegality in acquiring title destroys any claim of bona fides
The prior judgment had held that the respondents illegally and fraudulently acquired title to the suit land, and that in consequence the question of bona fides was unfounded. The review court found no basis to disturb this reasoning, since re-appraisal of the evidence would amount to exercising appellate jurisdiction, which review does not permit.
Legal principles established
#- Once a Notice of Appeal is filed, the trial court has no jurisdiction to entertain an application for review of its own decision
- An error or omission warranting review must be self-evident and not require elaborate argument
Court orders
#- 1.The Applicant's Notice of Motion dated January 16, 2025 is dismissed
- 2.The Applicant shall meet the Appellant/Respondent's costs of the Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Ruiru Principal Magistrate's Court
- Ruiru SPM's EL.C. Civil Suit No. E065 of 2021
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment and decree of 20th November 2024
The application was dismissed for want of jurisdiction and failure to meet the review threshold
Review and setting aside or variation of the judgment of 20th November 2024
No error apparent on the face of the record, no new and important matter, and no other sufficient reason established
Costs
The Applicant will meet the Appellant/Respondent's costs in respect to the Application
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.
There can be no place for review once an intention to appeal has been intimated by filing of a notice of appeal.
An Application for review will only be allowed on very strong grounds particularly if its efiect will amount to re-opening the Application or case afresh.
The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the Judge applied or interpreted the law or exercised his discretion would amount to exercise of Appellate Jurisdiction, which is not permissible.
The appropriate order is to dismiss the Applicant's Notice of Motion dated January 16, 2025. Having dismissed the Application, it follows that the Applicant will meet the Appellant/Respondent's costs in respect to the Application.
Issues in the judgment
#Inconsistent party designations throughout the ruling - the Applicants seeking review are described as 'Respondents/Applicants' while the opposing party is 'Appellant/Respondent', and the Supporting Affidavit is described as sworn by 'the 1st Respondent Applicant'
Conflicting dates for the same receipt - payment dated 24th May, 2006 in one passage and 24th May, 2005 in another
Counsel's own list of issues is internally duplicated and garbled, with the bona fide purchaser issue appearing twice and issue (b) split across two letters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau v Githinji & another (Environment and Land Appeal E058 of 2023) [2025] KEELC 3893 (KLR)", Case Analysis (2025). Notice of Motion dated 16th January 2025 (Ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3893/eng@2025-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.