After opting to apply for a review against a decision unsuccessfully, a litigant cannot file an appeal against the same decision.

Serephen Nyasani Menge v Rispah Onsase

Misc Application No 5 of 2018

Environment and Land Court at Kisii

J M Mutungi, J

November 23, 2018

Reported by Beryl A Ikamari

Civil Practice and Procedure-appeals- matters not appellable as of right-institution of an appeal from a subordinate court to the High Court- failure to obtain leave before filing an appeal-effect of failure to obtain leave of court within time where a decision was not appellable as of right-Civil Procedure Act (Cap 21), section 75(1); Civil Procedure Rules 2010, order 43 rules 1 & 2.

Civil Practice and Procedure-appeal and review-exhaustion of review-where a litigant had opted to apply for a review of the orders of a subordinate court-whether that litigant, after exhaustion of the review option, could seek to appeal against the same orders-Civil Procedure Act (Cap 21), section 80; Civil Procedure Rules 2010, order 45 rules 1(a) & 1(b) .

Brief facts

The applicant applied for leave to appeal out of time against the decision of the Senior Resident Magistrate's Court of December 18, 2015. The applicant explained that the reason for the delay in filing the appeal was that she had sought a review of the same decision and the review application was dismissed. Similarly an appeal against the decision to dismiss the review application was dismissed. The effect was that the time allowed for purposes of filing an appeal ran out.

The respondent opposed the application. She stated that the decision issued on December 18, 2015 was not one that was appellable as of right under order 43 of the Civil Procedure Rules and that after exercising the option of review unsuccessfully the applicant could not opt to appeal against the decision.

Issues

1. What was the effect of failing to seek leave of court to appeal where a decision was not appellable as of right?
2. Whether a litigant who opted to seek for a review of an order could seek to appeal against the same order, after an unsuccessful attempt at review.

Held

1. Section 75(1) of the Civil Procedure Act provided for the orders against which an appeal would lie as of right or those for which leave of court was required. Additionally, order 43 rule 1 of the Civil Procedure Rules set out orders and rules in respect of which appeals would lie as of right while order 43 rule 2 provided that an appeal would lie with leave of court from any other order made under the rules. That meant that unless the decision sought to be appealed against fell under the orders which were appellable as of right, it was necessary to obtain leave before an appeal could be preferred.
2. The Subordinate Court's decision of December 18, 2015 was not one that was appellable as of right. There was no automatic right of appeal and there was need to obtain leave of court. The leave could be obtained orally from court at the time the order was made or within 14 days from the date the order was made. Without seeking that leave no competent appeal could be lodged against that order.
3. Section 80 of the Civil Procedure Act was to the effect that a party could not seek the review of an order and at the same time appeal against the order. Order 45 rules 1(a) and 1(b) of the Civil Procedure Rules were of the same effect. A party who had opted to have a decision reviewed did not have the option of appealing against that decision.
4. The applicant had exhausted the option of review. She had appealed against the review decision. She had her day in court and litigation had to come to an end.
5. Under section 79G of the Civil Procedure Act, an appeal from a subordinate court to the High Court had to be filed within 30 days and extension of time for filing the appeal would be granted where good and sufficient cause for not filing the appeal in time was shown. Generally, no sufficient cause was demonstrated to show why there was a delay in filing the appeal.

Application dismissed.