Rai & 3 others v Rai & 4 others (? 307 of 2003) [2007] KECA 21 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it cannot re-open a decided appeal, even over bias claims, because no law gives it that power.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to re-open, re-hear and set aside its own concluded judgment in Civil Appeal No. 63 of 2001 on allegations of bias and denial of a fair hearing
- 2.Whether sections 64 and 77(9) of the Constitution, section 3 of the Appellate Jurisdiction Act, section 3 of the Judicature Act, or Rule 1(2) of the Court of Appeal Rules confer such a power
- 3.Whether the Court should follow its own recent decisions in Musiara Ltd v Ntimama and Chris Mahinda or the earlier decision in Rafiki Enterprises Ltd v Kingsway Tyres
- 4.Whether a retired Judge against whom allegations of bias are made may file an affidavit in response to such allegations
Key legal issues
#Whether the Court of Appeal may re-open a concluded appeal
It has no such jurisdiction; the power to re-open and re-hear is found neither in the Constitution nor in the Appellate Jurisdiction Act nor in the Rules, and the Court is a creature of statute exercising only conferred jurisdiction.
The Court traced its statutory history, relied on Rafiki Enterprises, Lakhamshi Brothers and Somani's, and held that the contrary remarks in Musiara and Chris Mahinda were obiter because the jurisdictional issue was never argued or necessary for decision in those cases. Section 3 of the Appellate Jurisdiction Act applies only to the hearing and determination of an existing appeal. Where public policy principles conflict, the court balances them; here finality prevailed.
Resolution of the conflict between Musiara/Chris Mahinda and Rafiki Enterprises
The Court expressly departed from Musiara and Chris Mahinda and preferred Rafiki Enterprises, holding the Musiara statement on jurisdiction to be obiter and the reliance on English authority contrary to section 3(1) of the Judicature Act where inconsistent with written law.
Githinji JA held that the Court is entitled to choose between its own conflicting decisions (Dodhia), that Musiara's remarks were not necessary for its decision and were made obiter, and that English case law on inherent jurisdiction to re-open appeals could not be applied in Kenya because jurisdiction there derives from a different constitutional framework and English rules (CPR rule 52.17) have no Kenyan equivalent.
Whether a Judge may file an affidavit answering allegations of bias in proceedings seeking to re-open his judgment
No. Judicial independence and the policy protecting judges from entering the litigation arena outweigh the principle that no person should be condemned unheard in this context; the affidavit was expunged as filed contrary to public policy.
Bosire JA balanced the natural justice principle against the independence of judges under section 77(9) and section 129 of the Evidence Act, held that allegations of bias must ordinarily be raised before or during the hearing and not after judgment, and that hearing the Judge would set an unhealthy precedent undermining judicial independence.
Whether the alleged breach of section 77(9) could be pursued via the High Court
The remedy for violation of fundamental rights lies in an application to the High Court under section 84 of the Constitution, but it would be absurd to allow the High Court to reverse a decision of the Court of Appeal made on appeal from that very High Court; the applicants could not raise the issue in a concluded appeal.
The Court accepted counsel's submission that fundamental rights complaints follow the section 84 route to the High Court and appeal, but rejected any suggestion that the High Court could set aside a Court of Appeal decision, as that would produce a circularity of which the law is no friend.
Legal principles established
#- The Court of Appeal has no jurisdiction to re-open, re-hear or recall a concluded appeal; a right of appeal and the powers of the Court exist only as conferred by statute
- Where public policy principles conflict, the court must balance one against the other on the facts; the principle of finality required that the applicants' concluded appeal not be re-opened
- A judgment delivered by a court alleged to be biased remains a valid judicial decision until set aside by a court with jurisdiction
Court orders
#- 1.The preliminary objection raised on behalf of the 1st, 2nd, 3rd and 4th respondents was upheld
- 2.The notice of motion dated 12th November 2003 and lodged on 13th November 2003 was struck out
- 3.Costs of the application awarded to the 1st, 2nd, 3rd and 4th respondents, to be paid by all the applicants and the 5th respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Leading ruling. Balanced the principle that there must be an end to litigation against the principle that justice must be seen to be done, and held that the Court of Appeal has no jurisdiction, under the Constitution, the Appellate Jurisdiction Act, or its Rules, to re-open and re-hear a concluded appeal; upheld the preliminary objection and struck out the motion with costs.
The power to re-open and rehear an appeal is to be found nowhere in the Constitution. It is to be found nowhere in the Appellate Jurisdiction Act.p. 13
Wrote the judgment
Separate ruling giving reasons for expunging the affidavit of retired Justice Shah and his advocate's notice of appointment, holding that judicial independence and the policy of finality outweighed the Judge's desire to be heard, and that the Court is functus officio after delivery of judgment and has no jurisdiction to entertain the application.
In the circumstances, I do not think this Court has the jurisdiction to entertain this application.p. 20
Wrote the judgment
Separate ruling agreeing with Omolo JA but expressly departing from Musiara and Chris Mahinda, holding their remarks on re-opening appeals were obiter, that English authorities could not be imported where inconsistent with Kenyan statute, and preferring Rafiki Enterprises as the correct statement of the law.
Inasmuch as the Court of Appeal is by law enjoined to exercise jurisdiction as conferred by our written laws, the two English decisions are at least inconsistent with our written laws conferring jurisdiction on the Court of Appeal.p. 27
Wrote the judgment
Agreed with the rulings of Omolo, Bosire and Githinji JA and with the proposed costs order.
I respectfully agree with the reasoning and conclusions reached in those rulings and I have nothing useful to add.p. 27
Wrote the judgment
Agreed with the rulings of Omolo, Bosire and Githinji JA including the proposed orders as to costs.
I respectfully agree with their rulings including the proposed orders as to costs and I have nothing further to add.p. 28
- On appeal from
- High Court of Kenya (winding up cause underlying Civil Appeal No. 63 of 2001)
- Winding Up Cause No. 44 of 1999
- Jurisdiction invoked
- Sections 60, 64, 77(9) and 84 of the former Constitution; section 3 of the Appellate Jurisdiction Act (Cap 9); section 3 of the Judicature Act (Cap 8); Court of Appeal Rules
Relief refused
#Setting aside in toto of the judgment of 30th September 2002 and rehearing of the appeal before a differently constituted bench
No statute or rule confers jurisdiction on the Court of Appeal to re-open a concluded appeal; the Court is functus officio once judgment is delivered
Stay of all further proceedings in High Court Winding Up Cause No. 44 of 1999 pending rehearing of the appeal
The application was struck out for want of jurisdiction, so the ancillary relief could not be granted
Costs
Costs of the application to the 1st, 2nd, 3rd and 4th respondents, to be paid by all the applicants and the 5th respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, I have myself come to the conclusion that this litigation ended on 30th September, 2002 when this Court gave its judgment.
I would myself uphold the preliminary objection raised on behalf of the 1st, 2nd , 3rd and 4th respondents and the consequence of my upholding the preliminary objection must be that the notice of motion dated 12th day of November, 2003 and lodged in this Court on 13th November, 2003 is incompetent and does not lie.
In the result, I would strike out the application dated 12th November 2003 and filed in Court on 13th November 2003 for want of jurisdiction.
For those reasons, I would uphold the preliminary objection and strike out the application dated 12th November, 2000 with costs as proposed by Omolo JA.
In the Court of Appeal of Kenya, however, does not have a statutory provision similar to the one contained in the Civil Procedure Act.
Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought the first order is wrong.
Issues in the judgment
#The motion date is inconsistently stated in Githinji JA's ruling: he opens by describing the notice of motion as dated 12th November 2003, but in his closing order refers to an application dated 12th November 2000
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngatia v Nairobi City County Public Service Board & 2 others (Employment and Labour Relations Petition E156 of 2024) [2025] KEELRC 2531 (KLR)[2025] KEELRC 2531 (KLR)25 Sept 2025
- Moijo Matayia Ole Keiwua v Chief Justice of Kenya & 6 others [2006] KECA 47 (KLR)[2006] KECA 47 (KLR)17 Nov 2006applied
Cite this brief
#Cite this brief
Caselaw, "Rai & 3 others v Rai & 4 others (? 307 of 2003) [2007] KECA 21 (KLR)", Case Analysis (2007). Civil Application No. Nai. 307 of 2003 (154/2003 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/21/eng@2007-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.