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Court of AppealDismissedCivil Application No. NAI 23 of 2009· [2014] KECA 696 (KLR)

Tobias Ongany Auma & 5 others v Kenya Airways Corporation [2014] KECA 696 (KLR)

Court of Appeal
28 March 2014
960 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to cancel its own 2007 judgment against former Kenya Airways employees, confirming final judgments can only be changed in rare circumstances.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, G.B.M. Kariuki and Gatembu Kairu, JJ.A.) delivered on 28th March 2014 on a notice of motion dated 30th January 2009 by six former applicants against Kenya Airways Corporation. The applicants sought a declaration that the Court's own judgment of 23rd November 2007 in Civil Appeal No. 350 of 2002 was delivered without jurisdiction and was null and void, together with the striking out of that appeal and costs. They argued that the respondent's advocates, Hamilton Harrison & Mathews, filed the notice of appeal before effecting a notice of change of advocates, in breach of the then Order III Rules 6 and 7 of the repealed Civil Procedure Rules, so that the firm had no locus standi to lodge the appeal; they also attacked the merits of the 2007 judgment, including its treatment of municipal and international law. The respondent deposed that the notice of change had in fact been filed before the notice of appeal, that its error was immaterial, and that the application came far too late. The court held that the application was in substance an attempt to appeal against the final judgment of the Court of Appeal, which the law does not allow, and that a judgment of the court can only be interfered with by the same court in very limited circumstances, namely to give effect to the court's intention at the time of judgment or to correct an apparent error under the slip rule. Following Somani's vs Shirinkhanu (No. 2), it dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the Court of Appeal has power to nullify its own final judgment

Holding

It does not, save in very limited circumstances such as giving effect to the court's intention at the time of judgment or correcting an apparent error under the slip rule; there is no provision in Kenyan law for an appeal against a final judgment of the Court of Appeal.

Reasoning

The court relied on the long-standing rule in Somani's vs Shirinkhanu (No. 2) that the court has always refused invitations to review its own decisions except to give effect to its intention at the time the judgment was written. The applicants' complaints went to the competence of the appeal and the merits of the earlier decision, which are matters for an appeal, not for a purported nullification. Departing from the rule was characterised as a most dangerous course.

p. 2
02

Whether a defect in the notice of change of advocates, or the filing of a notice of appeal before the change was effected, could be raised years later to void the judgment

Holding

The court did not decide this question on the merits; it held that such complaints, even if arguable, are not matters within the purview of giving effect to a judgment and could not be entertained through the present application.

Reasoning

The applicants argued that Hamilton Harrison & Mathews lacked locus standi to lodge the appeal because the notice of change of advocates was fatally defective, and that the court had also erred on the merits. The respondent answered that the notice had been filed, the error was minor, and the challenge came very late, some sixteen months after judgment. The court disposed of the application on jurisdictional grounds without resolving these contentions.

p. 3

Legal principles established

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  • The Court of Appeal cannot review or sit on appeal over its own final judgment except in very limited circumstances, namely to give effect to the court's intention at the time the judgment was given, or to correct an apparent error or omission under the slip rule.
  • Complaints that an appeal was incompetent or that the court erred in its decision are not matters within the purview of giving effect to a judgment and cannot ground a review by the same court.

Court orders

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  1. 1.The notice of motion dated 30th January 2009 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 1(3)
  • Judicature ActSection 3
  • Retired Constitution of KenyaSection 123(II)
  • Civil Procedure Rules (repealed)Order III Rules 6 and 7

Cases cited (1)

  • Somani's vs Shirinkhanu (No. 2)
    [1971] E.A. 79
On appeal from
Court of Appeal
Nairobi Civil Appeal No. 350 of 2002 (judgment of 23rd November 2007); original suit HCCC No. 4434 of 1992 (High Court, Mbogholi, J.)
Jurisdiction invoked
Rule 1(3) of the Court of Appeal Rules, Section 3 of the Judicature Act and Section 123(II) of the retired Constitution (inherent jurisdiction invoked to nullify a judgment of the Court of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Tobias Ongany Auma & 5 others v Kenya Airways Corporation [2014] KECA 696 (KLR)", Case Analysis (2014). Civil Application No. NAI 23 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/696/eng@2014-03-28

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