[2012] KEHC 4469 (KLR)
The court held that the applicant, having filed a notice of appeal against the judgment, could not simultaneously seek review of the same orders. The law is clear that a party must elect either to appeal or to seek review, not both. Furthermore, the applicant did not present any new or important matter or evidence...
Source-derived case information.
- Citation
- [2012] KEHC 4469 (KLR)
- Parties
- Appellant: John Muhoro Mwangi; Respondent: James Kamau Mwangi; Respondent: Elijah Fanson Njenga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 31 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Extension of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, Extension of Time, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muhoro Mwangi
Appellant
James Kamau Mwangi
Respondent
Elijah Fanson Njenga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Extension of Time
Legal Issues
- 1 Whether the applicant is entitled to review of the judgment delivered on 20/7/2010.
- 2 Whether the court should extend time for the applicant to file his memorandum of appeal.
Ratio Decidendi
The court held that the applicant, having filed a notice of appeal against the judgment, could not simultaneously seek review of the same orders. The law is clear that a party must elect either to appeal or to seek review, not both. Furthermore, the applicant did not present any new or important matter or evidence that would justify review under the relevant provisions of the Civil Procedure Rules. The appeal had been dismissed, not struck out, and the applicant's proper recourse was to pursue the appeal process rather than seek review. Accordingly, the application for review and extension of time was found to be undeserving and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 26/10/2010 is dismissed with costs.
Full Case Text
Judgment text and source record
34 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Civil Appeal 31 of 2004
JOHN MUHORO MWANGI ……….......………………….……………APPELLANT
VERSUS
JAMES KAMAU MWANGI ……………………………………1ST RESPONDENT
ELIJAH FANSON NJENGA …………………………………..2ND RESPONDENT
(AN APPEAL FROM THE RULING DELIVERED ON 11TH JUNE 2004 BY HON. P.T. NDITIKA. AT WANGURU SENIOR RESIDENT MAGISTRATE’S COURT MISC. SUCCESSION CAUSE NO. 24 OF 1981)
R U L I N G
This is the Appellant/Applicant’s application dated 26/10/2010 filed under Order 44 rule 1(1) (a) (Old Civil Procedure Rules) and section 79 G Civil Procedure Rules. It seeks the following orders;
a)That the Honourable Court be pleased to review its judgment delivered on 20/7/2010.
b)That the Hon. Court be pleased to extend time in which the Applicant may file his Memorandum of Appeal.
c)Costs of the application
It’s supported by the grounds in the body of the application plus a supporting affidavit and a supplementary affidavit.
The Respondent filed a replying affidavit opposing the application.
Both Counsels have filed written submissions. I have considered the submissions filed herein plus the affidavits and the Judgment the subject of this application.
In the said Judgment the Hon. Lady Justice Karanja dismissed the Appeal because the Appellant had not sought leave to file a competent Appeal out of time or ask the court to deem the Appeal as having been duly filed. The Appeal was not struck out but dismissed. This was on 20th July 2010. And on 30th July 2010 the Appellant filed a Notice of his intention to appeal against the whole Judgment. The Notice has not been withdrawn.
It’s true under the old Order XLIV and the new Order 45 Civil Procedure Rules where one has a right of appeal but has not appealed he/she may apply for review. It is never both appeal and review.
Since there is notice of Appeal which has not been withdrawn the Applicant cannot again come before this court for review of the same Orders appealed from.
Secondly the Appeal having been dismissed and not struck out the Applicant can only appeal against those Orders as there is nothing new which has come up. There is no discovery of new or important matters or evidence which he is presenting before the Court. He is aggrieved by the Court’s decision of dismissing his appeal. I therefore find that the Application is not deserving. Let the Applicant pursue the Appeal.
I dismiss the application with costs.
DATED, SIGNED AND DELIVERED AT EMBU THIS 9TH DAY OF MAY 2012
H.I. ONG’UDI
JUDGE
In the presence of:
Mr. Karanja for Mr. Muchira for Appellant/Applicant
Njue – C/c