Is a party allowed to appeal after seeking a review of a decision?
A.N. Ongeri-Judge
Brief facts
The applicant sought a stay of execution of the judgment pending the lodging of the appeal. The applicant had initially sought a review of the judgment.
Issues for determination
Can a party appeal against a reviewed decision?
Was the applicant entitled to stay of execution?
Rule of law
Order 45 Rule 1 of the Civil procedure Rules and Section 80 of the Civil Procedure Act provide that a party may seek a review from the same court that issued a decision for the judicial officer to relook at the decision. Some of the grounds are the discovery of new and important evidence, an error in the face of the record and any other sufficient reason.
Order 42 rule 6 of the Civil Procedure Rules provides that on application of a party, the court may order a stay of execution pending determination of an appeal.
Holding and reasoning of the court
The court held that the right to review does not extinguish the right to appeal since at the time he lodged an application for review, he did not prefer an appeal.
In allowing the stay of execution of the court directed that the stay was justified since the appeal was arguable and directed the applicant to furnish the whole decretal amount as security.
Disposition
The court granted the applicant leave to appeal out of time.
The court granted stay pending appeal of the decision.