Patrick Gathenya v Esther Njoki Rurigi & another [2008] KECA 32 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot reopen or set aside its own decided judgments, striking out an attempt to revisit a 2005 ruling with costs.
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 is at liberty to set aside or review its own judgments and reopen litigation for further agitation
- 2.Whether the applicant's notice of motion, seeking to set aside the judgment of 29th April 2005, should be struck out following the decision in Jasbir Singh Rai v Tarlochan Singh Rai
Key legal issues
#Whether the Court of Appeal can set aside or review its own judgment
No. Following Jasbir Singh Rai v Tarlochan Singh Rai, the Court of Appeal has no jurisdiction to reopen, re-hear or recall a decided appeal, whether on grounds of alleged constitutional violation, breach of natural justice or bias.
The court adopted the five-judge bench decision in Rai, which exhaustively reviewed the statutory provisions establishing the Court of Appeal and prior conflicting authority (Rafiki Enterprises v Kingsway Tyres on one side; Musiara v Ntimama and Mahinda on the other). It held the power to reopen and rehear an appeal exists nowhere in the Constitution or the Appellate Jurisdiction Act, and that finality of litigation prevails. The applicant's attempted distinctions from Rai were rejected as distinctions without a difference.
Whether counsel's distinguishing features (unheard parties, unpleaded issues, unenforceable orders) removed the case from Rai
No. The court held the distinctions were without a difference, as the same constitutional provisions, authorities and arguments had been raised and rejected in Rai.
The court observed that in Rai, as in the present case, the losing party invoked constitutional provisions and rules of natural justice to attack a concluded appeal. The authorities relied on were the same, including Rafiki, Musiara and Pinochet. The court declined to say there had been errors or omissions in the underlying judgment, found the issues raised had no merits, and held that since Rai such decisions will not be reopened.
Legal principles established
#- The Court of Appeal has no jurisdiction to reopen, re-hear, recall or set aside its own concluded judgment and substitute it with another, even on grounds of alleged violation of constitutional rights or rules of natural justice
- Once an appeal has been concluded, no appeal is pending and the residual jurisdiction to reopen does not exist, the power to reopen and rehear an appeal being found neither in the Constitution nor in the Appellate Jurisdiction Act
- The public interest in finality of litigation outweighs the principle that justice must be done and be seen to be done in the context of reopening concluded appeals
Court orders
#- 1.The applicant's notice of motion filed on 31st October 2005, seeking to set aside the judgment and orders of the Court of Appeal dated 29th April 2005, is struck out
- 2.Costs of the struck out motion shall be borne by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 504 of 1989
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act in relation to Civil Appeal No. 128 of 2002; the court held it had jurisdiction to strike out the motion under its power to control its process
Relief refused
#Setting aside of the judgment and orders made by the Court of Appeal on 29th April 2005 in Civil Appeal No. 128 of 2002
The Court of Appeal has no jurisdiction to reopen, re-hear or recall its earlier decision and substitute it with another; the motion was therefore struck out
Costs
Costs of the struck out motion shall be borne by the applicants.
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.
this Court still has no jurisdiction to re-open, re-hear and then recall its earlier decision and substitute it with another
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.
The public policy principle that there must be an end to litigation thus triumphed over the equally weighty principle that justice must be done and be seen to be done
In the end we find that there is jurisdiction to deal with the application before us in the manner sought. The application is for striking out and we so order. Costs of the struck out motion shall be borne by the applicants.
Issues in the judgment
#The final orders state that costs shall be borne by 'the applicants' although there is only one applicant; the introductory part of the ruling also suggests the court found jurisdiction 'in the manner sought' (striking out), which reads ambiguously against the express rejection of jurisdiction to set aside
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Gathenya v Esther Njoki Rurigi & another [2008] KECA 32 (KLR)", Case Analysis (2008). Civil Appli. Nai No. 290 of 2005 (UR 180/05). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/32/eng@2008-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.