Mahinda t/a Nyeri Trade Centre v Kenya Power & Lighting Co Ltd [2005] KECA 293 (KLR)

Rule 35(1) and (2) targets clerical or arithmetical mistakes and errors arising from accidental slip or omission, correctable so as to give effect to what the court intended when judgment was given. The applicant's complaint was that the Court misconstrued the Advocates Act in holding that a practising certificate issued in September 2004 had no retrospective effect on acts done earlier that year. That is a challenge to the substance and correctness of the ruling, not a slip, and cannot be laundered through the slip rule; it is in truth an attempt to reargue the appeal.

The applicant invoked rule 56(1)(b), which concerns an order permitting the doing of some act without specifying the date by which it is to be done, to attack the costs awarded on 10 June 2005 and the subsequent taxation. The Court held that the rule cannot be used to rescind a costs order merely because the successful party has been slow to tax its bill where the Rules impose no time limit for filing the bill of costs. The accompanying complaint that a taxation date had been illegally obtained therefore found no support in the rule, and the stay of taxation sought could not stand.

Following Musiara Ltd v William Ntimama, the Court reiterated its settled refusal of invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time of decision, because public policy demands finality in litigation and limits on reopening disputes. Citing Taylor v Lawrence with approval, it acknowledged a residual jurisdiction to reopen a determined appeal where significant injustice has probably occurred and no alternative effective remedy exists, as where bias is established. The applicant showed neither bias nor significant injustice; he simply disagreed with a matter of statutory interpretation, so the application failed.