[2016] KEHC 2083 (KLR)
The court held that the applicant, having filed a notice of appeal against the ruling he sought to review, was precluded by law from seeking review of the same order. Section 80 of the Civil Procedure Act expressly provides that review is only available where no appeal has been preferred. The applicant's act of...
Source-derived case information.
- Citation
- [2016] KEHC 2083 (KLR)
- Parties
- Applicant: Africa Oil Turkana Company Limited; Applicant: Africa Oil Kenya BV; Applicant: Africa Oil Corporation; Respondent: Intestate Petroleum Company Limited; Appellant: Edward Kings Onyancha Maina
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 1 of 2011
- Procedural Posture
- Winding Up Application / Ruling on Application for Review And/or Setting Aside of Previous Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- HK Chemitei
- Legal Topics
- Review of Orders, Appeal Vs Review, Errors on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Africa Oil Turkana Company Limited
Applicant
Africa Oil Kenya BV
Applicant
Africa Oil Corporation
Applicant
Intestate Petroleum Company Limited
Respondent
Edward Kings Onyancha Maina
Appellant
Procedural Posture
Winding Up Application / Ruling on Application for Review And/or Setting Aside of Previous Order
Legal Issues
- 1 Whether the applicant can seek review of a court order after having filed a notice of appeal against the same order.
- 2 Whether there was an error apparent on the face of the record justifying review or setting aside of the previous order.
- 3 Whether the orders previously granted were discriminatory against the applicant.
Ratio Decidendi
The court held that the applicant, having filed a notice of appeal against the ruling he sought to review, was precluded by law from seeking review of the same order. Section 80 of the Civil Procedure Act expressly provides that review is only available where no appeal has been preferred. The applicant's act of filing a notice of appeal on the same day as the impugned ruling constituted an election to pursue the appellate route, thereby foreclosing the option of review. The court found no merit in the application for review or setting aside, as the applicant could not pursue both remedies concurrently. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 30/5/2016 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
WINDING UP CASE NO. 1 OF 2011
AFRICA OIL TURKANA COMPANY. LIMITED ..1ST PETITONER
AFRICA OIL KENYABV........................................2ND PETITIONER
AFRICA OIL CORPORATION …....................... 3RD PETITIONER
VERSUS
INTESTATE PEETROLEM COMPANY LIMITED ..RESPONDENT
AND
MAOSA KENGARA MONEMA ….................1ST CONTRIBUTOR
ERICK PATRICK ADERO OBAT ….............. 2ND CONTRIBUTOR
MOSES ONYANGO OBOYO …...................3RD CONTRIBUTOR
LUCY MUTHONI GATIMU …........................4TH CONTRIBUTOR
EDWARD KINGS ONYANCHA MAINA …...5TH CONTRIBUTOR
R U L I N G
On 24/3/2016 my brother Justice Githinji allowed an application dated 1/10/2015 by the supporting creditor. The applicant (the 5th contributor) has applied to have the same set aside and or reviewed. He further argued that there were errors apparent on the face of record and that the orders granted were discriminatory. That application dated 30/5/2016 is supported by his affidavit sworn on the same day.
The same has been opposed by the respondents vide the grounds of opposition dated 26/9/16 and 22/8/2016 respectively.
Both respondents argue that the application is frivolous and vexatious and that there is no error apparent on the face of record which this court can deem important and therefore interfere with the impugne decision.
Section 80 of the Civil procedure Act which the applicant has premise his application among other sections of the law provides as follows;
“Any person who consider himself aggrieved -
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decreeor order from which no appeal is allowed by this Act,
May apply for a review of judgment to the court which passed the decree or made the order and the court may make uch order thereon as it thinks fit.”
The above quotation presupposes that no appeal has been preferred against the decree or order. In other words the applicant cannot apply for review yet at the same time prefer an appeal.
In the instant matter it appears that when the ruling was declined the applicant was dissatisfied and he filed a Notice of Appeal dated 24/March 2016.
The parties apparently, including the applicant did not allude to this during the hearing of the application. It follows therefore that the applicant desired to challenge the entire decision at the Court of Appeal. That is a constitutional right.
However the cannot on he same breath apply for setting aside, nullifying or reviewing the said ruling when he has chosen the appeal path. The framers of the rules expected that a party ought to make one definate choice, either appeal or review. In this case the applicant chose to appeal, infact on the same day. He cannot be allowed the luxury of review.
Consequently and without wasting much judicial time on other issue raised by the parties and given my above observation I do dismiss the application with costs to the respondent.
Delivered this 25th day of October 2016.
H.K. CHEMITEI
JUDGE
In the presence of;
Ayisi for Petitioner/Respondent
and holding brief for Achok for the Defendant
Kirong – Court Assistant