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Court of AppealOtherCivil Appeal 135 of 2002· [2006] KECA 267 (KLR)

African Development Bank v Beatrice Agnes Acholla & Another

Court of Appeal of Kenya
28 April 2006
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuPWP.N. Waki
477 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that three judges can overturn its own past decisions—no five-judge bench is required.

What this practically means

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Executive summary

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This interlocutory ruling of the Court of Appeal at Nairobi, delivered by a bench of three judges (Tunoi, O'Kubasu and Waki, JJA) on 28 April 2006, determined a single procedural question arising in Civil Appeal 135 of 2002: whether the appeal should be heard by a full bench of five judges. The appeal, brought by the African Development Bank against Beatrice Agnes Acholla and Rosemary Ambalo Acholla, lies from a ruling of Rimita, J of the High Court at Nairobi dated 20 December 2001 in H.C.C.C. No. 3157 of 1996. When the appeal was called on, counsel for the appellant, Mr Ojiambo, applied for an expanded bench because he intended to seek a reversal of the Court of Appeal's earlier decision in Tononoka Steels Ltd v Eastern & Southern Africa Trade and Development Bank (PTA) [2002] 2 EARL 536, which he submitted offended international norms of immunity concerning the privileges and immunities of international organizations, their staff and members' representatives. Counsel noted that the Tononoka decision had not been referred to Rimita, J, but conceded that a bench of three could properly decide all the issues. Counsel for the respondents raised no objection. The court, applying Spry, Ag VP's statement in Income Tax v T [1974] EA 546, held that the mere intention to invite the Court to reverse one of its own decisions is not a ground for constituting a bench of five; a bench of three has the same powers and can decide the correctness of a prior decision. No decision suggesting Tononoka was wrongly decided was shown. The application was rejected. The ruling does not disturb the High Court's decision, makes no costs order, and the substantive appeal remains to be heard. The binding proposition is that a three-judge bench possesses full power to revisit the correctness of prior Court of Appeal authority.

Key legal issues

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Whether an expanded bench of five judges is required where a party seeks to reverse a prior decision of the Court of Appeal

Holding

It is not required. The correctness of a prior Court of Appeal decision may be canvassed before, and decided by, a bench of three judges, which has the same powers as a bench of five.

Reasoning

The court adopted Spry, Ag VP's observation in Income Tax v T that although the President should be asked to consider convening a bench of five where reversal of the court's own decision is intended, a bench of three has the same powers. No decision suggesting Tononoka was wrongly decided was shown, so expansion was unwarranted.

p. 2

Legal principles established

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  • The mere intention to invite the Court to reverse one of its own decisions is not a ground for constituting a full bench of five judges; a bench of three judges has the same powers as a bench of five

Court orders

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  1. 1.Rejection of the appellant's application to expand the bench to five judges

Authorities

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Cases cited (2)

  • TONONOKA STEELS LTD VS. THE EASTERN & SOUTHERN AFRICA TRADE AND DEVELOPMENT BANK (PTA)
    [2002] 2 EARL 536

    Prior Court of Appeal decision on immunities of international organizations which the appellant intends to ask the Court to reverse

  • INCOME TAX V. T
    [1974] EA 546

    Proposition that a bench of five should be considered where reversal of the court's own decision is sought, though a bench of three has the same powers

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3157 of 1996
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling of the High Court (the judgment does not cite the specific constitutional or statutory provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "African Development Bank v Beatrice Agnes Acholla & Another", Case Analysis (2006). Civil Appeal 135 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/267/eng@2006-04-28

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