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Court of AppealDismissedCivil Appeal No. 229 of 2001

Sum Model Industries Ltd v Industrial & Commercial Development Corporation & Attorney Genera (Civil Appeal 229 of 2001) (Civ) [2010] KECA 362 (KLR)

Court of Appeal of Kenya
26 March 2010
ROR.S.C. OmoloSBS.E.O. BosireEGE.M. Githinji
2,153 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot revisit its own final judgments, so parties must raise every objection before judgment is delivered.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Omolo, Bosire and Githinji, JJA) dismissed an application by Sum Model Industries Ltd seeking to recall, rescind, set aside, cancel or review the Court's judgment of 8th June 2007, which had reduced special damages of Kshs.8,515,060 awarded by the High Court (Msagha J) in H.C.C.C. No. 3389 of 1994 to Kshs.2,235,138.90. The applicant argued that neither the superior court nor the Court of Appeal had jurisdiction to assess or reduce special damages where its opponent's defence had been struck out and no evidence adduced, and further that the appeal was incompetent because the appellant's advocates came on record after judgment without leave. The Court reaffirmed the settled position that it has no jurisdiction to revisit, recall or review its own final decisions, following Jasbir Singh Rai, where a five-judge bench held that finality of litigation rests on public policy: even a wrong decision must be lived with in the interest of certainty and security. It held that a jurisdictional objection, though raisable at any stage, may only be raised during the pendency of a suit; the applicant should have raised it before judgment was pronounced on 8th June 2007, after which the Court's jurisdiction was spent. The competency objection based on the change of advocates was also rejected as having never been raised during the appeal. The notice of motion was dismissed with costs to the respondent, the appellant in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to recall, rescind, set aside or review its own final judgment of 8th June 2007
  2. 2.Whether an issue of jurisdiction, not raised before final judgment, can be raised thereafter in an application to review the judgment
  3. 3.Whether the appeal was incompetent because the respondent's advocate came on record after judgment without leave of the superior court

Key legal issues

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01

Jurisdiction of the Court of Appeal to recall or review its own final judgment

Holding

The Court has no jurisdiction to review or recall its final decisions; any residual inherent jurisdiction in exceptional circumstances does not permit a party to reopen a concluded matter merely because the decision may be wrong

Reasoning

The Court traced a line of authority from Lakhamshi Brothers through Musiara Ltd and Chris Mahinda, where obiter dicta allowed exceptional revisiting, to Jasbir Singh Rai, where a five-judge bench settled the matter: finality is grounded in public policy. In Peter Nganga Muiruri the Court reaffirmed that attempts to revive concluded matters can only fail. Applications seeking review of final decisions have become frequent and must be refused.

p. 3
02

Timing of a jurisdictional challenge

Holding

A challenge to jurisdiction, though raisable at any stage, may only be raised while proceedings are pending; it cannot found a review after final judgment

Reasoning

The applicant contended the Court lacked jurisdiction to reduce the special damages award. The Court held that the applicant should have raised the objection before judgment was pronounced on 8th June 2007. Having failed to do so, the Court's jurisdiction was spent and it could not assist the applicant even if the objection was well founded; proceedings must terminate at a particular point.

p. 4
03

Competence of the appeal based on change of advocates after judgment

Holding

The objection that the new firm of advocates could not file the notice of appeal without leave was not raised when the appeal was pursued and could not now be raised to reopen the concluded appeal

Reasoning

The notice of change of advocate was filed on 6th June 2000, followed by a notice of appeal, and no issue as to the competency of the firm or the appeal was raised at any point during the appeal. Mr. Ngoge's excuse that he was not then counsel for the applicant did not avail; issues of competence ought to have been raised at the hearing of the appeal.

p. 3

Legal principles established

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  • The Court of Appeal has no jurisdiction to revisit, recall or review its own final decisions; litigation must end at a certain point as a matter of public policy
  • Issues of jurisdiction may be raised at any stage of proceedings, but only during the pendency of the suit, not after final judgment
  • Once final judgment is pronounced, the Court's jurisdiction over the matter is spent regardless of whether a jurisdictional objection might have succeeded

Court orders

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  1. 1.The notice of motion dated 26th June 2007 is dismissed with costs to the respondent, the appellant in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
SB
majority
EG
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3389 of 1994
Jurisdiction invoked
Inherent/residual jurisdiction of the Court of Appeal; application under the Court of Appeal Rules seeking recall/review of the Court's judgment of 8th June 2007

Relief refused

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Application to recall, rescind, set aside, cancel or review the judgment and orders of 8th June 2007

The Court has no jurisdiction to revisit its own final decisions; finality of litigation is a matter of public policy

p. 4

Costs

Application dismissed with costs to the respondent, the appellant in the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is now settled that the Court has no jurisdiction to revisit its earlier decisions.
p. 4Finality of Court of Appeal decisions
Issues of jurisdiction may be raised at any stage of the proceedings. However, it can only be raised during the pendency of a suit, not otherwise.
p. 4Timing of jurisdictional objections
Our jurisdiction was spent on 8th June, 2007, when judgment was pronounced on this matter.
p. 4Spent jurisdiction after final judgment
This is a doctrine which enables the courts to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down.
p. 3Doctrine of finality, quoting Bosire JA in Jasbir Singh Rai
Accordingly we order that the notice of motion dated 26th June 2007 be and is hereby dismissed with costs to the respondent, the appellant in the appeal.
p. 4Final orders and disposition

Issues in the judgment

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minor

The motion is described as filed on 10th July 2007 but is referred to in the final orders as 'the notice of motion dated 26th June 2007', creating an internal inconsistency in dates

minor

The caption styles Sum Model Industries Ltd as 'RESPONDENT/APPLICANT' and ICDC as 'APPELLANT/RESPONDENT', but the narrative at times refers to the applicant as 'respondent' and ICDC as 'the appellant' without consistent usage

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Sum Model Industries Ltd v Industrial & Commercial Development Corporation & Attorney Genera (Civil Appeal 229 of 2001)  (Civ) [2010] KECA 362 (KLR)", Case Analysis (2010). Civil Appeal No. 229 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/362/eng@2010-03-26

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