[2021] KEELC 458 (KLR)

[2021] KEELC 458 (KLR)

The court held that the applicant, having elected to seek a review of the judgment and failed, could not subsequently appeal the same judgment on similar grounds. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules are conclusive that a party cannot seek both review and appeal over the same matter. The grounds for review and the proposed grounds of appeal were substantially the same, and the applicant had submitted himself to the review jurisdiction. The delay in filing the appeal was explained by the pendency of the review application, but this did not entitle the applicant to an extension of time to appeal the same judgment. The application for...

Citation
[2021] KEELC 458 (KLR)
Parties
Appellant: Peter Mambo Karinga; Respondent: John Gitonga; Respondent: Albert Mburu Karinga; Respondent: Githunguri Constituency Ranching Co Ltd
Court
Environment and Land Court
Court Station
Environment and Land Court at Thika
Jurisdiction
Kenya
Judgment Date
10 December 2021
Case Number
Environment & Land Case E014 of 2021
Procedural Posture
Miscellaneous Application / Ruling on Application for Enlargement of Time and Stay of Execution, Determination of Preliminary Objection
Outcome
application dismissed; preliminary objection upheld
Judges
BC Koech
Legal Topics
Review Vs Appeal, Enlargement of Time, Stay of Execution, Land Injunctions
Source Language
English
Civil Procedure Land and Property Review Vs Appeal Enlargement of Time Stay of Execution Land Injunctions

Case Brief

Summary, issues, holding and outcome

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Parties

Peter Mambo Karinga

Appellant

John Gitonga

Respondent

Albert Mburu Karinga

Respondent

Githunguri Constituency Ranching Co Ltd

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Enlargement of Time and Stay of Execution, Determination of Preliminary Objection

Legal Issues

  1. 1 Whether an applicant who has sought and failed in a review of a judgment can subsequently appeal the same judgment on similar grounds.
  2. 2 Whether the court should enlarge time for filing an appeal where the applicant prosecuted a review first.
  3. 3 Whether a stay of execution can be granted where no competent appeal is pending.

Ratio Decidendi

The court held that the applicant, having elected to seek a review of the judgment and failed, could not subsequently appeal the same judgment on similar grounds. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules are conclusive that a party cannot seek both review and appeal over the same matter. The grounds for review and the proposed grounds of appeal were substantially the same, and the applicant had submitted himself to the review jurisdiction. The delay in filing the appeal was explained by the pendency of the review application, but this did not entitle the applicant to an extension of time to appeal the same judgment. The application for...

Court Disposition

application dismissed; preliminary objection upheld

Orders

  • The application dated 20/7/2021 is dismissed.
  • No orders as to costs.