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Court of AppealStruck OutCivil Application No. 271 of 2003· [2004] KECA 169 (KLR)

Musiara Limited v William Ole Ntimama

Court of Appeal
18 November 2004
Philip Kiptoo TunoiP.K TunoiEOE.O. O'KubasuJOJ.W. Onyango Otieno
3,553 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it cannot review its own decisions, and objecting to a judge only after losing is too late.

What this practically means

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Executive summary

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Musiara Limited applied to the Court of Appeal for recall, cancellation or rescission of a ruling of 3rd October 2003 in which a differently constituted bench, presided over by Shah, JA, had granted William ole Ntimama stay orders under rule 5(2)(b) pending an intended appeal, including reinstating him as non-executive chairman and director of the applicant company. The applicant argued the ruling was made without jurisdiction, granted reliefs not sought, and was tainted by bias arising from Shah, JA's past professional relationship with the respondent. The respondent raised a preliminary objection that the court had no jurisdiction to reconsider a decision of another bench of the same court, the Appellate Jurisdiction Act conferring no original jurisdiction. The court sustained the objection. It held that it has always refused invitations to review, vary or rescind its own decisions except to give effect to its intention at the time, whether or not the decision has been perfected, and that rule 35(1) was inapplicable absent any accidental slip. It nevertheless accepted, following Taylor v Lawrence and Pinochet (No.2), a residual jurisdiction to reopen a determined matter where bias is established, to be exercised with utmost care; but the past relationship did not raise a possibility of bias before a fair-minded and informed observer, disclosure had been made and the applicant had unequivocally raised no objection, the complaint surfacing only after it lost. The application was struck out with costs.

Key legal issues

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01

Jurisdiction to recall or rescind the court's own decision

Holding

The Court of Appeal has no jurisdiction to entertain an application to recall, cancel or rescind a ruling made by another bench of the same court; such invitations have always been refused.

Reasoning

By section 3(2) of the Appellate Jurisdiction Act the court has no original jurisdiction; its powers are to hear appeals. Inherent powers under rule 1(3) can only be exercised in the course of hearing an appeal. Permitting reconsideration would open the doors to all and sundry to challenge decisions on afterthought arguments, whether or not the decision has been perfected.

p. 4
02

Rule 35(1) correction of accidental slip

Holding

Rule 35(1) does not assist because no clerical or arithmetical mistake or accidental slip or omission was shown.

Reasoning

The applicant could not point to any clerical or arithmetical mistake in the decision or error arising from accidental slip or omission to justify correction of the ruling; the complaint was substantive disagreement with the outcome, not a slip.

p. 4
03

Residual jurisdiction to reopen on grounds of bias

Holding

The court accepts it has a residual jurisdiction to reopen a determined matter where bias is established, following Taylor v Lawrence and the Pinochet (No.2) principle, but the applicant failed the test.

Reasoning

Section 77 of the Constitution guarantees a fair trial by an independent and impartial court. Established bias breaches natural justice and demands a remedy, potentially justifying reopening. But the jurisdiction is exceptional: significant injustice must be probably established, fraud or absence of alternative remedy shown, and the court must act with utmost care as the final court.

p. 5
04

Disqualification and waiver of Shah, JA

Holding

The past professional relationship did not raise a possibility of bias in the eyes of a fair-minded and informed observer, and any objection was waived by disclosure and the applicant's unequivocal lack of objection.

Reasoning

Shah, JA disclosed his past professional relationship and asked whether either party objected; counsel confirmed the applicant had no objection. Following Locabail, appropriate disclosure and absence of objection bar a subsequent complaint. The complaint was only resurrected after the applicant lost the application.

p. 5
05

Character of a rule 5(2)(b) ruling

Holding

A rule 5(2)(b) ruling granting stay pending intended appeal is interlocutory, based only on arguability and nugatory-ness, and does not amount to judgment binding the superior court or awarding judgment on the counterclaim.

Reasoning

Rule 5(2)(b) confers original jurisdiction pending appeal to order stay of execution, injunction or stay of proceedings. The court in the impugned ruling stated it was only concerned with whether the appeal was arguable and would be rendered nugatory; it did not decide the issues or bind the trial court.

p. 4

Legal principles established

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  • The Court of Appeal has no original jurisdiction and cannot reconsider, recall, vary or rescind a decision made by a bench of the same court, whether or not the decision has been perfected.
  • The only exception is where the applicant was wrongly deprived of the opportunity of presenting argument, which may render the proceedings null and void.
  • The Court of Appeal has a residual jurisdiction to reopen a determined appeal or application to avoid real injustice in exceptional circumstances, including where bias is established, to be exercised with utmost care.
  • The bias test is whether the circumstances would lead a fair-minded and informed observer to conclude there was a real possibility or real danger of bias; full disclosure plus the party's unequivocal lack of objection waives the complaint.
  • A decision under rule 5(2)(b) on stay pending appeal is interlocutory and does not bind the court hearing the appeal or the superior court trying the suit.

Court orders

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  1. 1.The preliminary objection is sustained
  2. 2.The application lodged in this Court on 6th October, 2003 is struck out with costs

Authorities

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Legislation

  • Rules of this Court (Court of Appeal Rules)rule 1(2)
  • Rules of this Court (Court of Appeal Rules)rule 1(3)
  • Rules of this Court (Court of Appeal Rules)rule 5(2)(b)
  • Rules of this Court (Court of Appeal Rules)rule 31
  • Rules of this Court (Court of Appeal Rules)rule 35(1)
  • Rules of this Court (Court of Appeal Rules)rule 42(1)
  • Rules of this Court (Court of Appeal Rules)rule 56(2)
  • Appellate Jurisdiction ActSection 3(2)
  • The Companies Act Cap 486, Laws of KenyaSection 140
  • Constitution of KenyaSection 77
  • Civil Procedure RulesOrder 20 rule 3

Cases cited (10)

  • RAFIKI ENTERPRISES LIMITED v. KINGSWAY TYRES & AUTOMART LIMITED
    Nai. No. 375 of 1996 (unreported)

    Inherent powers under rule 1(3) can only be exercised within and in the course of hearing an appeal

  • STANLEY MUNGA GITHUNGURI v. JIMBA CREDIT CORPORATION LTD
    Civil Application No. Nai. 161 of 1988 (Unreported)

    Court cannot reconsider its own decisions

  • RITHIBO v. NYINGI
    (1984) KLR 505

    Court cannot reconsider its own decisions

  • LAKHAMSHI BROTHERS LTD. v. RAJA & SONS
    [1966] EA 313

    Court refuses to review, vary or rescind its own decisions whether or not perfected

  • LOCABAIL LTD v. BAYFIELD PROPERTIES LTD & ANOTHER
    [2002] I ALL ER 63

    Appropriate disclosure by the judge and absence of objection bar a later complaint of bias

  • SOMANI'S v. SHIRINKHANU (NO.2)
    [1971] E.A. 79

    Exception where a party was wrongly deprived of the opportunity to present argument

  • LADD v. MARSHAL
    [1954] 3 ALL ER 745

    Finality of litigation; exceptions reserved for rare and limited cases strictly proved

  • TAYLOR & ANOTHER v. LAWRENCE & ANOTHER
    [2002] 2 ALL ER 353

    Residual jurisdiction to reopen a determined appeal to avoid real injustice in exceptional circumstances

  • R v. BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE, Ex P Pinochet Ugarte (No.2)
    [1999] I ALL ER 577

    Court may reopen a decision where an appearance of bias on the part of a bench member is demonstrated

  • PORTER v. MAGIL
    [2002] 1 ALL E.R. 465

    Fair-minded and informed observer test for real possibility or real danger of bias

On appeal from
Court of Appeal (differently constituted)
Civil Application No. Nai. 228 of 2003 (U.R 112/03)
Jurisdiction invoked
Rules of this Court (Court of Appeal Rules), rules 1(2), 56(2) and 42(1); preliminary objection on the court's jurisdiction under the Appellate Jurisdiction Act, Section 3(2)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Musiara Limited v William Ole Ntimama", Case Analysis (2004). Civil Application No. 271 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/169/eng@2004-11-18

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