Musiara Limited v William Ole Ntimama (Civil Application 271 of 2004) (Civ) [2004] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it cannot review its own decisions, and losing a case is too late to complain about a judge you accepted earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction to recall, rescind, review or vary its own decision or ruling.
No. Decisions of one bench cannot be reconsidered by another bench of the same Court; such invitations are refused whether or not the decision has been perfected, save to give effect to the Court's intention at the time, or where a party was wrongly deprived of the opportunity of presenting its argument, which might render the proceedings null and void.
The Court grounded the rule in finality: public policy demands that the outcome of litigation be final and that limits be placed on reopening disputes, since permitting recall would open the doors to challenges based on arguments thought of long after the decision was delivered. Lakhamshi and Somani were relied on. The sole exception is wrongful deprivation of the chance to argue a point, absent here because the complaints went to the correctness, not the validity, of the ruling.
Whether rule 35(1) of the Court of Appeal Rules could sustain correction of the ruling.
No. The rule applies only to clerical or arithmetical mistakes or errors arising from accidental slip or omission; none was shown. In any event, a court has no power after a judgment or ruling is signed to alter or add to it, as that would contravene Order 20 rule 3 of the Civil Procedure Rules.
The applicant's real grievance was the substantive correctness of the 3rd October 2003 orders, not a clerical slip in expressing the Court's intention, so rule 35(1) had no application. The Court reinforced this with the statutory bar on altering a signed judgment or ruling, restating that a court has no inherent power to do that which is prohibited by law.
Whether the Court has jurisdiction to reopen a matter it has already determined on the ground of bias or apparent bias on the part of a member of the bench.
Yes. The Court has a residual jurisdiction, to be exercised with utmost care, to reopen proceedings already heard and determined where bias is established, in exceptional circumstances, where significant injustice has probably occurred and there is no alternative effective remedy.
Following Taylor v Lawrence and Pinochet (No. 2), and Section 77 of the Constitution guaranteeing trial by an independent and impartial court, the Court held that the need to maintain confidence in the administration of justice makes a remedy imperative where bias is established. The jurisdiction is discretionary, confined to rare and limited cases, and is balanced against the finality of litigation; the effect on others and the complainant's own conduct are also relevant.
Whether Shah, JA was disqualified by his past professional relationship with the respondent.
No. The judge disclosed the past professional relationship before the hearing and invited objections; the applicant, after consulting, confirmed it had none. A fair-minded and informed observer would not perceive a real possibility of bias, and the objection was only resurrected after the applicant lost.
The Court treated the prior disclosure and the applicant's unequivocal acceptance as a waiver of any right to object, consistent with the Locabail principles urged by the respondent's counsel. A complaint revived only after an adverse ruling could not ground reopening; the past relationship was not capable of affecting the judge's approach or the decision, and no miscarriage of justice was established.
Whether the 3rd October 2003 ruling was made without or in excess of rule 5(2)(b) jurisdiction or amounted to judgment in the main suit before trial.
No. A rule 5(2)(b) decision is interlocutory, based only on whether the intended appeal is arguable and would be rendered nugatory; it does not bind the court hearing the appeal or the superior court trying the suit, and could not have awarded judgment on the counterclaim in advance of trial.
The Court re-examined the 2003 ruling and found it turned solely on arguability of the intended appeal, including compliance with Section 140 of the Companies Act on the removal of the respondent as chairman and director. Because rule 5(2)(b) empowers only stay or injunction orders pending appeal in the exercise of original jurisdiction, the contention that the decision adjudicated the counterclaim or ousted the High Court was misconceived.
Legal principles established
#- The Court of Appeal has no jurisdiction to review, vary or rescind its own decisions, whether or not they have been perfected, except so as to give effect to its intention at the time the decision was made, or where a party was wrongly deprived of the opportunity of presenting its argument on a particular point.
- A decision made under rule 5(2)(b) of the Court of Appeal Rules on a stay pending an intended appeal is interlocutory and does not bind the bench hearing the appeal or the superior court trying the suit.
- The Court of Appeal possesses an exceptional residual jurisdiction to reopen proceedings it has already heard and determined where bias is established; it must be exercised with utmost care and tested by whether a fair-minded and informed observer would conclude there was a real possibility, or a real danger, of bias.
- Full disclosure by a judge of past professional links with a party, met with a party's unequivocal statement of no objection, waives any complaint of disqualification or bias, which cannot be revived after an adverse outcome.
- A court has no inherent power to do that which is prohibited by law; it cannot alter or add to a judgment or ruling after it is signed, that being contravened by Order 20 rule 3 of the Civil Procedure Rules.
Court orders
#- 1.Preliminary objection sustained.
- 2.The application lodged in this Court on 6th October, 2003 struck out with costs.
- On appeal from
- Court of Appeal of Kenya (differently constituted bench)
- Civil Application No. NAI. 228 of 2003 (UR 112/03)
- Jurisdiction invoked
- Rules 1(2), 56(2) and 42(1) of the Court of Appeal Rules (under which the motion for recall/rescission was expressed to be brought); the Court also considered its inherent residual jurisdiction to reopen a matter it had already determined
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Daniel Lago Okomo v Safari Park Hotel Ltd & another [2018] KECA 261 (KLR)[2018] KECA 261 (KLR)12 Oct 2018not followed
- Peter Kimani Kairu t/a Kimani Kairu & Company Advocates v Anna Marie Cassiede & another [2017] KECA 374 (KLR)[2017] KECA 374 (KLR)28 Jul 2017
- Harun Osoro Nyambuki v Peter Mujunga Gathuru & another [2016] KECA 518 (KLR)[2016] KECA 518 (KLR)27 May 2016applied
- Mugenda v Itolondo & 4 others; President & 6 others (Interested Parties)[2016] KESC 16 (KLR)17 Mar 2016
- Menginya Salim Murgani v Kenya Revenue Authority[2014] KESC 2 (KLR)19 Dec 2014distinguished
- Standard Chartered Financial Services & another v Manchester Outfitters (Suiting Division) Ltd (Now Known As King Woollen Mills Ltd) & 2 others [2014] KECA 508 (KLR)[2014] KECA 508 (KLR)27 Jun 2014
- Sum Model Industries Ltd v Industrial & Commercial Development Corporation & Attorney Genera (Civil Appeal 229 of 2001) (Civ) [2010] KECA 362 (KLR)[2010] KECA 362 (KLR)26 Mar 2010
- JASBIR SINGH RAI & 3 OTHERS v TARLOCHAN SINGH RAI & 4 OTHERS [2007] KECA 132 (KLR)[2007] KECA 132 (KLR)7 Dec 2007doubted
- Mahinda t/a Nyeri Trade Centre v Kenya Power & Lighting Co Ltd [2005] KECA 293 (KLR)[2005] KECA 293 (KLR)18 Nov 2005followed
Cite this brief
#Cite this brief
Caselaw, "Musiara Limited v William Ole Ntimama (Civil Application 271 of 2004) (Civ) [2004] KECA 12 (KLR)", Case Analysis (2004). Civil Application No. 271 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/12/eng@2004-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.