Background and Introduction
1. On 16th May 2024, the 5th defendant filed an application seeking review of the judgment delivered by this Court on 1st March 2024. In response, the plaintiff filed a Notice of Preliminary Objection dated 3rd September 2024, which is the subject of this ruling.
2. The respondent argues that this Court lacks jurisdiction to entertain the application for review, given the pendency of Civil Appeal No. E624 of 2024 and a cross-appeal which it also filed. It argues that under Order 45 Rule 1(2) of the Civil Procedure Rules, review is barred where an appeal has been preferred, particularly if the issues raised overlap. The respondent contends that the grounds advanced in the applicant’s review application mirror those in the pending appeal and cross-appeal, including whether the suit was time-barred, the applicant’s liability and the legality of the property sale, matters now sub judice.
3. The respondent further asserts that the question of costs can be appropriately addressed before the appellate court, and this renders the review application both procedurally and substantively defective. Additionally, the respondent faults the applicant for failing to serve the application in a timely manner, only doing so after being served with the appeal documents. On these grounds, the respondent urges the Court to uphold the preliminary objection and dismiss the application for review with costs.
4. The applicant opposes the preliminary objection on four grounds. First, it argues that it was the successful party in the judgment delivered on 1st March 2024, having had the claim against it dismissed on grounds of limitation, and is therefore entitled to costs under Section 27 of the Civil Procedure Act. Second, it contends that the failure to award costs was an error apparent on the face of the record, which may be corrected through review under Order 45 Rule 1 of the Civil Procedure Rules.
5. Third, it maintains that the review application was filed promptly and does not seek to reopen the case but merely to rectify a manifest and self-evident omission. Lastly, the applicant submits that the preliminary objection is misconceived, as it is based on the erroneous assumption that it has filed an appeal, and that in any event, the objection raises factual issues not suitable for determination as a pure point of law within the meaning of Mukisa Biscuit Manufacturing Co Ltd V West End Distributors Ltd, [1969] EA 696.
Analysis and Determination
6. The Preliminary Objection was canvassed by way of written submissions, which I have duly considered. At the outset, I am satisfied that the objection raised by the respondent meets the threshold established in the Mukisa Biscuit case. The objection is premised on a pure point of law, namely, whether this Court has jurisdiction to entertain an application for review where an appeal and cross-appeal have been filed in respect of the same judgment. It does not require the resolution of contested facts and is therefore properly raised as a preliminary objection. Accordingly, the issue for determination is whether the Preliminary Objection raised by the respondent is merited.
7. The procedure for seeking review is set out under Order 45 Rule 1(1) of the Civil Procedure Rules. It provides that a person who considers themselves aggrieved by a court decision, either one from which an appeal is allowed but has not been filed, or one from which no appeal is allowed, may apply for a review of the judgment or order.
8. The application must be based on specific grounds, including a clear mistake or error apparent on the face of the record. It is on this ground that the applicant seeks a review of the judgment.
9. Specifically, the applicant contends that it had successfully argued that the claim against it was statute-barred under the Limitation of Actions Act, an argument which the Court accepted. The applicant points to paragraph 39 of the judgment delivered on 1st March 2024, where the Court held as follows:
“It is therefore my finding that the suit against the 5th Defendant is filed out of time considering the period between 3rd December 2002 and 5th February 2010.”
10. While the applicant may contend that there is an error apparent on the face of the record, it is equally true that following the delivery of the judgment on 1st March 2024, an appeal and a cross-appeal have been filed. This fact is not disputed by any of the parties and effectively places the matter within the appellate court's domain. As a result, the issues raised in the application for review are now subject to appellate determination, rendering this Court functus officio in respect of the same.
11. The position of the law on the concurrent pursuit of review and appeal is settled. In Multichoice (Kenya) Ltd V Wananchi Group (Kenya) Limited & 2 Others, [2020] eKLR , the Court of Appeal emphatically stated:
“It is now an accepted view that both the Civil Procedure Rules and the Court of Appeal Rules did not contemplate the simultaneous proceedings of review and appeal before two different courts at the same time. Where a party has filed an appeal but subsequently wishes to apply to the court from which the appeal came to review the decision impugned, that party must, in the first place, withdraw the appeal.”
12. This principle was reaffirmed in Otieno Ragot & Company Advocates V National Bank of Kenya Ltd, [2020] eKLR , where the Court held that even the filing of a notice of appeal, prior to lodging the substantive appeal, precludes a party from seeking review. The Court observed:
“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 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 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. (See: Kamalakshi Amma V A. Karthayani, [2001] AIHC 2264 ).
The respondent’s application for review was therefore 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.”
13. This long-standing position was also echoed in Karani & 47 Others V Kijana & 2 Others, [1987] KLR 557 , where the Court held:
“Once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.”
14. In light of these authorities, it is clear that once the appellate process has been invoked, a party cannot simultaneously seek review of the same decision. To do so would amount to an abuse of process and it does not matter whether the review was filed before or after the appeal, so long as an appellate process has been triggered.
15. The applicant’s further position is that while there exists and appeal and cross appeal, it is not the party that instituted either of those proceedings and that its application for review is narrowly confined to the issue of costs. However, Order 45 Rule 1(2) of the Civil Procedure Rules is clear and instructive. It provides that even where an appeal has not been filed by the applicant, review is barred if the issues raised in the application for review are substantially the same as those pending in the appeal.
16. The respondent has demonstrated that the Memorandum of Appeal raises issues, including the question of the applicant’s liability and whether the Court erred in holding that the suit against the applicant was time-barred. Notably, the applicant has not contested these assertions. Instead, its case hinges on the argument that the issue of costs can be isolated from those broader questions now before the Court of Appeal.
17. However, the issue of the applicant’s liability, although not raised by the applicant, is already before the appellate court for determination. Any decision by this Court on the award of costs, which necessarily flows from a finding of liability or lack thereof, would overlap with and potentially contradict the appellate proceedings. The question of costs is not an independent matter but one inherently tied to the outcome of the issues now sub judice. To determine it at this stage would be to encroach upon the jurisdiction of the appellate court and risk rendering inconsistent findings.
18. Accordingly, it would be neither prudent nor legally proper for this Court to intervene while the matter remains pending on appeal. The applicant’s review application is therefore barred by the express terms and underlying rationale of Order 45 Rule 1(2) of the Civil Procedure Rules, which prohibit review where the same issues are already the subject of an appeal.
Disposition
19. The preliminary objection is upheld and the application dated 16th May 2024 is struck out with costs to the respondent.
It is so ordered.
1. On 16th May 2024, the 5th defendant filed an application seeking review of the judgment delivered by this Court on 1st March 2024. In response, the plaintiff filed a Notice of Preliminary Objection dated 3rd September 2024, which is the subject of this ruling.
2. The respondent argues that this Court lacks jurisdiction to entertain the application for review, given the pendency of Civil Appeal No. E624 of 2024 and a cross-appeal which it also filed. It argues that under Order 45 Rule 1(2) of the Civil Procedure Rules, review is barred where an appeal has been preferred, particularly if the issues raised overlap. The respondent contends that the grounds advanced in the applicant’s review application mirror those in the pending appeal and cross-appeal, including whether the suit was time-barred, the applicant’s liability and the legality of the property sale, matters now sub judice.
3. The respondent further asserts that the question of costs can be appropriately addressed before the appellate court, and this renders the review application both procedurally and substantively defective. Additionally, the respondent faults the applicant for failing to serve the application in a timely manner, only doing so after being served with the appeal documents. On these grounds, the respondent urges the Court to uphold the preliminary objection and dismiss the application for review with costs.
4. The applicant opposes the preliminary objection on four grounds. First, it argues that it was the successful party in the judgment delivered on 1st March 2024, having had the claim against it dismissed on grounds of limitation, and is therefore entitled to costs under Section 27 of the Civil Procedure Act. Second, it contends that the failure to award costs was an error apparent on the face of the record, which may be corrected through review under Order 45 Rule 1 of the Civil Procedure Rules.
5. Third, it maintains that the review application was filed promptly and does not seek to reopen the case but merely to rectify a manifest and self-evident omission. Lastly, the applicant submits that the preliminary objection is misconceived, as it is based on the erroneous assumption that it has filed an appeal, and that in any event, the objection raises factual issues not suitable for determination as a pure point of law within the meaning of Mukisa Biscuit Manufacturing Co Ltd V West End Distributors Ltd, [1969] EA 696.
Analysis and Determination
6. The Preliminary Objection was canvassed by way of written submissions, which I have duly considered. At the outset, I am satisfied that the objection raised by the respondent meets the threshold established in the Mukisa Biscuit case. The objection is premised on a pure point of law, namely, whether this Court has jurisdiction to entertain an application for review where an appeal and cross-appeal have been filed in respect of the same judgment. It does not require the resolution of contested facts and is therefore properly raised as a preliminary objection. Accordingly, the issue for determination is whether the Preliminary Objection raised by the respondent is merited.
7. The procedure for seeking review is set out under Order 45 Rule 1(1) of the Civil Procedure Rules. It provides that a person who considers themselves aggrieved by a court decision, either one from which an appeal is allowed but has not been filed, or one from which no appeal is allowed, may apply for a review of the judgment or order.
8. The application must be based on specific grounds, including a clear mistake or error apparent on the face of the record. It is on this ground that the applicant seeks a review of the judgment.
9. Specifically, the applicant contends that it had successfully argued that the claim against it was statute-barred under the Limitation of Actions Act, an argument which the Court accepted. The applicant points to paragraph 39 of the judgment delivered on 1st March 2024, where the Court held as follows:
“It is therefore my finding that the suit against the 5th Defendant is filed out of time considering the period between 3rd December 2002 and 5th February 2010.”
10. While the applicant may contend that there is an error apparent on the face of the record, it is equally true that following the delivery of the judgment on 1st March 2024, an appeal and a cross-appeal have been filed. This fact is not disputed by any of the parties and effectively places the matter within the appellate court's domain. As a result, the issues raised in the application for review are now subject to appellate determination, rendering this Court functus officio in respect of the same.
11. The position of the law on the concurrent pursuit of review and appeal is settled. In Multichoice (Kenya) Ltd V Wananchi Group (Kenya) Limited & 2 Others, [2020] eKLR , the Court of Appeal emphatically stated:
“It is now an accepted view that both the Civil Procedure Rules and the Court of Appeal Rules did not contemplate the simultaneous proceedings of review and appeal before two different courts at the same time. Where a party has filed an appeal but subsequently wishes to apply to the court from which the appeal came to review the decision impugned, that party must, in the first place, withdraw the appeal.”
12. This principle was reaffirmed in Otieno Ragot & Company Advocates V National Bank of Kenya Ltd, [2020] eKLR , where the Court held that even the filing of a notice of appeal, prior to lodging the substantive appeal, precludes a party from seeking review. The Court observed:
“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 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 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. (See: Kamalakshi Amma V A. Karthayani, [2001] AIHC 2264 ).
The respondent’s application for review was therefore 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.”
13. This long-standing position was also echoed in Karani & 47 Others V Kijana & 2 Others, [1987] KLR 557 , where the Court held:
“Once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.”
14. In light of these authorities, it is clear that once the appellate process has been invoked, a party cannot simultaneously seek review of the same decision. To do so would amount to an abuse of process and it does not matter whether the review was filed before or after the appeal, so long as an appellate process has been triggered.
15. The applicant’s further position is that while there exists and appeal and cross appeal, it is not the party that instituted either of those proceedings and that its application for review is narrowly confined to the issue of costs. However, Order 45 Rule 1(2) of the Civil Procedure Rules is clear and instructive. It provides that even where an appeal has not been filed by the applicant, review is barred if the issues raised in the application for review are substantially the same as those pending in the appeal.
16. The respondent has demonstrated that the Memorandum of Appeal raises issues, including the question of the applicant’s liability and whether the Court erred in holding that the suit against the applicant was time-barred. Notably, the applicant has not contested these assertions. Instead, its case hinges on the argument that the issue of costs can be isolated from those broader questions now before the Court of Appeal.
17. However, the issue of the applicant’s liability, although not raised by the applicant, is already before the appellate court for determination. Any decision by this Court on the award of costs, which necessarily flows from a finding of liability or lack thereof, would overlap with and potentially contradict the appellate proceedings. The question of costs is not an independent matter but one inherently tied to the outcome of the issues now sub judice. To determine it at this stage would be to encroach upon the jurisdiction of the appellate court and risk rendering inconsistent findings.
18. Accordingly, it would be neither prudent nor legally proper for this Court to intervene while the matter remains pending on appeal. The applicant’s review application is therefore barred by the express terms and underlying rationale of Order 45 Rule 1(2) of the Civil Procedure Rules, which prohibit review where the same issues are already the subject of an appeal.
Disposition
19. The preliminary objection is upheld and the application dated 16th May 2024 is struck out with costs to the respondent.
It is so ordered.