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Court of AppealDismissedCivil Application No. Nai. 375 of 1996

Rafiki Enterprises Limited v Kingsway Tyres & Automart Limited [1996] KECA 199 (KLR)

Court of Appeal
24 December 1996
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiGPG.S. Pall
3,834 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot recall or undo a judgment it has already delivered, and dismissed the challenge as an abuse of process.

What this practically means

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Executive summary

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Rafiki Enterprises Limited applied to the Court of Appeal, by notice on motion, seeking a stay of, recall of, and re-hearing before a full bench of the judgment delivered on 14th November 1996 in Civil Appeal No. 220 of 1995, which had allowed Kingsway Tyres & Automart Limited's appeal and restored an ex parte judgment against Rafiki. The application was premised on the contention that the appeal had been heard by a bench including Bosire, Ag. J.A., whose acting appointment under Gazette Notice Number 4475 of 1996 was said to be unconstitutional because eight substantive Judges of Appeal already existed, contrary to section 61(5) of the Constitution and section 7(2) of the Judicature Act. The Court (Omolo, Tunoi and Pall, JJ.A.) first held that its jurisdiction and inherent powers under Rule 1(3) of its Rules are confined to the hearing of appeals from the High Court; it has no original jurisdiction and no power to recall and nullify a judgment already delivered, and the Civil Procedure Act does not apply to it. It further held that where a constitutional interpretation question arises in the Court of Appeal, the Court must itself determine it, since every court has a duty to determine its own jurisdiction. On the merits, the Court held that Bosire, Ag. J.A.'s acting appointment was lawful under the fourth head of section 61(5) - the state of business - and that a statutory cap conflicting with that provision would be invalid. Observing that the objection had been raised only after the applicant lost, the Court dismissed the application as an abuse of process and indicated that the applicant's advocate, Mr. Mwenesi, would be called upon to show cause why he should not personally bear the costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has inherent power under Rule 1(3) of its Rules, or jurisdiction under the Civil Procedure Act or the Appellate Jurisdiction Act, to recall and nullify a judgment already delivered
  2. 2.Whether the Court of Appeal may itself determine a question touching on the interpretation of the Constitution arising in an appeal, or must refer it to the High Court
  3. 3.Whether the acting appointment of Bosire, Ag. J.A. under Gazette Notice Number 4475 of 1996 was lawful notwithstanding that there were already eight substantive Judges of Appeal
  4. 4.Whether the application should be dismissed as an abuse of the process of the court

Key legal issues

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01

Scope of the Court of Appeal's inherent powers

Holding

The inherent power conferred by Rule 1(3) of the Court of Appeal Rules relates only to the hearing of appeals from the High Court; the Court has no original jurisdiction and cannot make orders such as recalling a delivered judgment

Reasoning

Section 64(1) of the Constitution creates the Court of Appeal as a court with jurisdiction and powers only in relation to appeals from the High Court, conferred by law. Section 3(2) of the Appellate Jurisdiction Act vests High Court powers in the Court only for purposes incidental to hearing and determining appeals. Any reading conferring original jurisdiction would conflict with the Constitution, which would prevail. The Civil Procedure Act, defining 'court' as the High Court or a subordinate court, does not apply to the Court of Appeal.

p. 2
02

Constitutional interpretation questions arising in the Court of Appeal

Holding

The Court of Appeal must itself determine constitutional interpretation questions arising in a matter before it; there is no provision requiring referral to the High Court as there is for subordinate courts

Reasoning

Section 67(1) of the Constitution requires subordinate courts to refer constitutional questions to the High Court, but there is no equivalent provision for the Court of Appeal. It would be impractical and ridiculous for the Court to refer a challenge to its own jurisdiction to the High Court. Every court has a duty to determine whether it has jurisdiction, so the Court must decide such issues as part of its appellate jurisdiction.

p. 5
03

Legality of acting appointment of a Judge of Appeal when eight substantive Judges exist

Holding

Section 61(5) of the Constitution permits acting appointments where the Chief Justice advises the President that the state of business so requires, even with eight substantive Judges of Appeal; the applicant's contrary construction would render the fourth head of section 61(5) meaningless

Reasoning

The first three circumstances in section 61(5) concern vacancies; the fourth covers the state of business. If the number of Judges could never exceed eight, the fourth head would be unnecessary. Gazette Notice Number 4475 of 1996, though it should perhaps have cited sections 61(2) and (5) and 64(3), was substantively valid. Section 7(2) of the Judicature Act, if read as an absolute bar, would conflict with the Constitution and be invalid.

p. 6
04

Abuse of process in raising the bench-composition objection only after losing

Holding

The application was reckless, impertinent, not brought in good faith, and an abuse of the process of the court, having been brought only to avoid obligations under the judgment

Reasoning

The applicant was represented by counsel at the hearing of the appeal, saw Bosire, Ag. J.A. sitting, and raised no objection to his qualification; the objection surfaced only after the appeal was lost. The application also caused grave embarrassment to the Judge personally and to the Judicial Service Commission. The Court therefore dismissed the application and indicated it would consider personal costs against the applicant's advocate.

p. 7

Legal principles established

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  • The Court of Appeal's jurisdiction and inherent powers under Rule 1(3) of its Rules are confined to the hearing and determination of appeals from the High Court and cannot be exercised as original jurisdiction
  • The Court of Appeal has no power to recall and nullify a judgment it has already delivered
  • Every court has a duty to determine whether it has jurisdiction, and where a question touching the interpretation of the Constitution arises in the Court of Appeal, the Court must itself determine it as part of its appellate function
  • A right of appeal must be expressly given by law and cannot be implied or inferred
  • The provisions of the Civil Procedure Act do not apply to the Court of Appeal, which has its own rules of procedure
  • Acting Judges of Appeal may lawfully be appointed under section 61(5) of the Constitution on the ground that the state of business so requires, even where there are already eight substantive Judges of Appeal; a conflicting statutory cap would be invalid

Court orders

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  1. 1.The application is dismissed
  2. 2.Mr. Mwenesi, the applicant's advocate, is to be called upon at a later stage to show cause why he should not personally pay the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
Philip Kiptoo Tunoi
majority
GP
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 220 of 1995
Jurisdiction invoked
Sections 100, 63(e) and 34 of the Civil Procedure Act, section 3(2) and (3) of the Appellate Jurisdiction Act, Rules 1(3) and 42 of the Court of Appeal Rules, Order 50 Rules (1) and (2) of the Civil Procedure Rules and section 84(1) of the Constitution of Kenya (as invoked by the applicant); the Court held its own jurisdiction limited to appeals from the High Court under section 64(1) of the Constitution and section 3 of the Appellate Jurisdiction Act

Relief refused

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Stay of the judgment of 14th November 1996 pending hearing of the application

The Court has no jurisdiction to make such orders; the application was reckless, impertinent and an abuse of process

p. 6

Recall and withdrawal of the judgment in Civil Appeal No. 220 of 1995 delivered on 14th November 1996

The Court of Appeal's jurisdiction is limited to hearing appeals from the High Court and its inherent powers under Rule 1(3) can only be exercised in the course of hearing an appeal

p. 3

Re-hearing of Civil Appeal No. 220 of 1995, if thought fit by a full bench

Bosire, Ag. J.A. was lawfully appointed as an acting Judge of Appeal; the objection was raised only after the applicant lost and was not brought in good faith

p. 6

Costs

Costs were not finally awarded: the court indicated that Mr. Mwenesi should personally take responsibility for the costs but would be called upon at a later stage to show cause why he should not pay them; no costs order was made for the present.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have no power to recall and nullify a judgment already delivered.
p. 6Absence of jurisdiction to recall a delivered judgment
the inherent powers conferred by Rule 1(3) can only be exercised within and in the course of hearing an appeal.
p. 3Limits of the Court of Appeal's inherent powers
Every court has a duty to determine whether or not it has jurisdiction in a particular matter.
p. 5Jurisdiction of a court to determine its own competence
if and when a matter touching on the interpretation of the Constitution arises in this Court, the Court must itself determine that issue as part of the problems of law it is called upon to deal with in the exercise of its appellate jurisdiction.
p. 6Constitutional interpretation in the Court of Appeal
We think, the application is simply and purely an abuse of the process of the Court. We order that it be and is hereby dismissed.
p. 7Final orders - dismissal for abuse of process
On costs, we think Mr. Mwenesi should personally take responsibility for them but before we make any order against him, we shall call upon him at a later stage to show cause why he should not pay them.
p. 7Final orders - costs against advocate to be show-caused

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rafiki Enterprises Limited v Kingsway Tyres & Automart Limited [1996] KECA 199 (KLR)", Case Analysis (1996). Civil Application No. Nai. 375 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/199/eng@1996-12-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.