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JudgmentBERNARD MWAURA THUKU VS DENNIS MUSYOKA PAUL14 min read

BERNARD MWAURA THUKU VS DENNIS MUSYOKA PAUL

High Court at Makueni High Court · · Matheka, Teresia Mumbua


  1. The brief background of the matter before me is as set out in the respondent’s submissions: -
  2. The plaintiff filed a suit for compensation emanating from a traffic accident at the Makindu Law Courts vide Civil Case No. E43 of 2020.Dennis Mutisya vs Robert Mutisya &Benard Mwaura Thuku
  3. The 2nd defendant entered appearance in the lower court through the firm of Kimondo Gachoka & co advocates.
  4. Thereafter Hon. Karani heard the said matter and a judgment was duly delivered on 4/10/2023.
  5. The plaintiff embarked on execution of the decree of the said court and it’s in the process execution that the applicant lodged an application dated 7/12/2023 seeking a review of the judgment of Hon. Karani.
  6. Notably the application dated 7/12/2023 sought inter alia:-
  7. That this Hon. Court do issue further orders of review of the judgment/decree issued on 20/10/2023 and the 2nd defendant’s name be expunged/removed from this suit.
  8. Hon.  Kibe delivered her ruling dismissing the said application on 31/1/2024 which prompted the applicant to file the instant appeal and suit before this court against the said ruling.
  9. The applicant filed Notice of Motion dated 5/2/2024 brought under section 1A, 1 b and 3A of the Civil Procedure Act, and under Order 42 Rule 6 of the Civil Procedure Rules and under all the enabling provisions of the law, seeking orders:
  10. That this application be certified urgent and be heard exparte in the first instance.
  11. That this court be pleased to make an order of stay of execution of the decree obtained in the lower court case No. E043 of 2020 pending the hearing of the application inter-partes.
  12. That the court be pleased to order a stay of execution of the decree obtained in the lower court case No. E043 of 2020 pending the hearing and determination of the appeal herein.
  13. That the cost of this application be provided for.
  14. On the grounds, inter alia, that:
  15. The appeal herein arises from a ruling by the Hon. Senior Resident Magistrate at Makindu on an application for review.
  16. That the appeal has very high chances of success.
  17. That the appellant/applicant stands to suffer irreparable loss if the execution is not stayed as his motor vehicle and household goods have been attached and even one of the vehicles has been towed and stored at the auctioneer’s yard.
  18. That if the execution herein is allowed to proceed and the appeal is eventually allowed the same will be rendered nugatory.
  19. That the appellant/applicant is ready to abide by condition that this court may grant.
  20. The application is supported by the affidavit of Bernard Mwaura Thuku sworn on 5/2/2024 – he depones inter alia :
  21. That the appeal herein arises out of the ruling delivered in Makindu Hon. M.W.Kibe Senior Resident Magistrate on the 31st January 2024.
  22. That the said ruling arose out of his application for a review of the judgment from the same court delivered by Hon. J.D Karani Senior Resident Magistrate on the 4th of October, 2023.
  23. That the said application for review was made pursuant to Order 45 Rule 1 of the Civil Procedure Rules in that in the suit he was wrongly sued on the basis that his motor vehicle registration No. KBW 338Q was involved in an accident on the 13th January 2018 whereas the correct motor vehicle that was involved in the accident was KBW 339 Q.
  24. That he was never served with summons or pleadings in the suit but the firm of Kimondo Gachoka was appointed by M/s Direct Line Insurance Company and throughout the proceedings, he was never notified or involved in the proceedings.
  25. That it is only after his motor vehicle and household goods were attached that he became aware of the existence of this suit.
  26. That upon the said attachment he went to Makindu traffic base and the officer in charge on seeing the police abstract which

he had obtained from the court file realized that the registration number of the motor vehicle entered in the abstract which was produced in court was wrong and entered a correction showing that the correct motor vehicle involved in the accident was KBW 339Q.

  1. That he further obtained a copy of the charge sheet in Traffic case No. 37 of 2018 where the 1st defendant in the suit was charged with traffic offence arising from the said accident and where the motor vehicle he was driving is clearly stated as KBW 339Q.
  2. That in view of the said error on the face of the record and in view of the discovery of this new evidence he made the application for review but the Hon. Senior Resident Magistrate dismissed the same on the grounds that he should have appealed.
  3. The court allowed prayer (2) of the Notice of Motion pending the hearing and determination of the application inter partes.
  4. The respondent filed Notice of Preliminary Objection dated 12/2/2024 on the grounds:
  5. That the applicant herein having subjected himself to a review process vide an application dated 7/12/2023 cannot subsequently lodge an appeal against the outcome of the said review decision of the trial court dated 31/1/2024.
  6. That the applicant cannot exercise concurrently a review and an appeal process at the same time thus the applicant and appeal before this court is an abuse of court process and vexatious.
  7. It is submitted for the respondent on the Notice of Motion that having filed a review of the judgment in the lower court; the applicant cannot file for review of the ruling on review and at the same time file an appeal.
  8. The grounds of appeal are set out in the Memorandum of appeal:
  9. That the learned magistrate erred in making a finding that the issues raised in the appellant application dated 7th December 2023 are best dealt with by an appeal court.
  10. That the learned magistrate erred in failing to realize that the grounds upon which the said application was made were that there was new evidence which was not availed to the court at the hearing of the main suit.
  11. That the learned magistrate erred in making a finding that the court was being tasked to sit on appeal in respect of the judgment of Hon. J.D Karani dated 4th October 2023.
  12. That the learned magistrate erred in making a finding that the 2nd defendant in the lower court ought to have appealed if dissatisfied with the judgment of the trial court yet the 2nd defendant clearly stated in this affidavit that he was not served with the pleadings, was not notified of the  suit or involved in the proceedings thereon.
  13. That the learned magistrate erred in making a finding that whether it was motor vehicle KBW 339Q or KBW 338Q involved in the accident is not a new issue yet the issue of the correct motor vehicle only came up pursuant to the appellant application.
  14. That the learned magistrate erred in failing to make a finding that the appellant herein never participated in proceedings and was therefore not a party to submission filed herein.
  15. That the learned magistrate erred in finding that the 2nd defendant failed to enjoin the motor vehicle KBW 339Q yet he was not aware of the existence of the case until his property was attached.
  16. That the learned magistrate erred in refusing to allow the application for review whereas it was properly before the said court and enough grounds had been demonstrated to warrant a review of the judgment.
  17. For the respondent it is submitted that the issue for determination is whether the applicant can exercise a review and an appeal concurrently.
  18. It is submitted for the respondent that the fact that this is an appeal against a review ruling is an abuse of the court.
  19. The respondent relies on:

Multipurpose Co-operative Society Ltd –vs Serser & 3 Others  (Civil Appeal 160 of 2018) [2023] KECA 441 KLR) (14 April 2023) where the Court of Appeal held that:

“To our minds, that implies that it is open to the appellant to commence the process of appeal, and then take a pause, so that he could pursue the option of a review first. That would imply that the appellant had the two options (of review and of an appeal) running concurrently. Yet the court did not conclude that both options cannot be pursued concurrently or one after the other.

And on Otieno, Ragot & Company advocates v- National Bank of Kenya Limited [2020) eKLR, where the court expressed itself thus;

“Even though the substantive appeal had not been led, the respondent had led a notice of appeal. At the time the application for review was made, the notice of appeal was in place. In effect, it was pursuing the relief of review while keeping open its option to appeal against the same ruling. It probably hoped that if the application for review failed it would then pursue the appeal. It was gambling with the law and judicial process. It is precisely to a void this kind of scenario that the option either to appeal or review was put in place. There can be no place for review once an intention to appeal has been intimated by filing a notice of appeal (see Kamalakshi Amma v- A. Karthayani [2001] AIHC 2264).

The respondent’s application for review was thus incompetent, hence the court did not have jurisdiction to grant the orders sought under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.”

Also Gerald Kithu Muchanje v Catherine Muthoni Ngare & Another [2020] e KLR where the Court of Appeal held that:

“The applicant was aggrieved by the judgment of the trial court. Under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original judgment. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error. An appeal could only lie on the outcome of the application for review.”

And in Martha Wambui v- Irene Wanjiru Mwangi & Another (2015) eKLR, the court stated that

“from the above provisions of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, it is clear that one cannot exercise the right of appeal and at the same time apply for review of the same judgment/decree or order. One must elect either to file an appeal or to apply for a review … It therefore follows that the appellant herein had an unimpeded right to either appeal against the ruling of 13/6/2014 or apply to have it reviewed. And having exercised the right to a review, she lost the right of appeal against the same order ...”

In Otieno Ragot & Co. advocates v- National Bank of Kenya Ltd [2020] e KLR:

It is not permissible to pursue an appeal and an application for review concurrently. If a party chooses to proceed by way of an appeal, he automatically loses the right to ask for a review of the decision sought to be appealed. In the case of Karani & 47 Others v- Kijana & 2 Others [1987] KLR 557, the court held that: “Once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.

African Airlines International Limited v- Eastern & Southern Africa Trade Bank Limited [2003] 1 EA 1 (CAK)

Even though the substantive appeal had not been filed, the respondent had filed a notice of appeal. At the time when the application for review was made, the notice of appeal was in place. In effect, it was pursuing the relied of review while keeping open its option to appeal against the same ruling. It probably hoped that if the application for review failed it would then pursue the appeal. It was gambling with the law and judicial process. It is precisely to avoid this kind of scenario that the option either to appeal or review was put in place. There can be no place for review once an intention to appeal has been intimated by filing of a notice of appeal.

  1. Ultimately, it is the position of the respondent that, the appellant having gone the review way, he cannot come on appeal of the ruling on review.
  2. In addition, it is submitted that the applicant is estopped as per section 120 of the Evidence Act which states that:

“When one person has, by his declaration, act or omission, intentionally caused nor permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

The reason for that, it is submitted:

In the judgment of Hon. Karani dated 4/10/2023 the issue of liability was determined by the said magistrate where the defendants were held 100% liable. The 2nd defendant was represented and failed to tender any evidence in the lower court. Then post judgment he allegedly unearthed some evidence which he tried to convince Hon. Kibe that it was not available to him during trial and that he then wanted Hon. Kibe to correct the judgment to that effect.

In the same vein the applicant never denounced the defence or rather the representation by the firm of Kimondo Gachoka. It only after the judgment has gone horribly wrong that is when he realized that he did not know about the suit. While all along the said firm ably represented him in the lower court.

  1. For the appellant it is submitted that the Preliminary Objection fails the test in Mukisa Biscuit Manufacturing  Co. Ltd –vs- West End Distributors Ltd which provides the definition of a Preliminary Objection as follows:

“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which is argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by contract giving rise to the suit, to refer the suit to arbitration.

  1. That the applicant has a right to appeal against the ruling of the trial court under Order 43(x). He relies on Circuit Business Systems Limited v- County Government of Siaya (2020) eKLR where it was held:

The said Order 43 is the procedural Order for section 75 of the Civil Procedure Act. It provides: “Appeals from Orders:” “An appeal shall lie with as of right from the following orders and rules under the provisions of section 75(1) (h) of the Act:

  1. That the jurisdiction of this court is provided for by Article 165 of the Constitution. “This court has the jurisdiction to hear and determine appeals from tribunals, subordinate courts or bodies.”
  2. I have carefully considered the submissions before me and the only issue for determination is whether the Preliminary Objection is merited. To determine that we must answer the question whether the law allows an appeal from a ruling on an application for review of a judgment.
  3. It is not in dispute that Hon. Karani delivered a judgment in this matter on 4/10/2023.
  4. It is also not in dispute that the defendant/respondent filed an application for review of the judgment vide the amended Notice of Motion dated 7/12/2023 brought inter alia under Order 45(1) of the Civil Procedure Rules.
  5. By then the trial magistrate had been transferred and the application was herd by a different magistrate. The magistrate framed the issue thus: whether this court should review the judgment/decree issued on 20th December 2023 and whether the 2nd defendant name should be expunged/removed from the suit.

The learned magistrate went on to state that:” I have noted the issues raised by the 2nd defendant and in my view, the issues raised are best dealt with by an appeal court. This court cannot sit on appeal in respect to the decision/judgment of Hon. D. Karani dated 4th October 2023 and the said application in my view seeks to re-open this case. The said trial court delivered a judgment which addresses the issue of liability and quantum and if the 2nd defendant is dissatisfied with the said judgment or any of the findings thereof, he ought to approach the proper court which is the appeal court which is at liberty to uphold the said judgment or set it aside.

  1. The court also found that that there was no new evidence and declined to grant the orders.
  2. It is against the finding of the trial court that this appeal has been brought.
  3. Can it be said that the applicant is seeking both an appeal and review concurrently?
  4. With respect, it is my view that the argument raised by the respondent would apply if the applicant had filed – before this court an application for review of judgment of the subordinate court by this court and an appeal.
  5. What the applicant has done is to exercise the right clearly provided for under Order 43 Rule 1(x) which states – that

an appeal shall be as if right from – Order 45 Rule 3 application (for review)

Order 45 Rule 3 states: -

Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.

(2)  Where the court is of opinion that the application for review should be granted, it shall grant the same:

Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.

  1. Section 75. Of the CPA provides for orders from which appeal lies

(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—

(a) …

(b) …

(c) …

(d) …

(e) …

(f) …

(g)…

(h) any order made under rules from which an appeal is expressly allowed by rules

  1. Evidently what the applicant is seeking is allowed under section 75 of the CPA and Order 43 of the CPR. Order 45 provides for review, Order 43 Rule 1 (x) provides that an appeal shall lie out of a ruling on review. All these legal provisions read together support the appellant’s bid to appeal against the ruling of the subordinate court.
  2. In the circumstances I find that the P.O is not sustainable and the same is dismissed with costs.

Dated signed and delivered virtually on 20/05/2024


    BERNARD MWAURA THUKU VS DENNIS MUSYOKA PAUL BERNARD MWAURA THUKU VS DENNIS MUSYOKA PAUL