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Court of AppealDismissedCivil Application No. 191 of 2011· [2016] KECA 54 (KLR)

Mukuru Munge v Florence Shingi Mwawana & 2 others [2016] KECA 54 (KLR)

Court of Appeal
26 February 2016
AMAsike MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,882 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to reopen its 2013 judgment, confirming that limitation periods in Kenya are binding deadlines courts cannot ignore as technicalities.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Malindi (Makhandia, Ouko & M'inoti, JJ.A) determines an application by Mukuru Munge to reopen, review and vary the Court's judgment of 7th October 2013, which had dismissed his second appeal against a High Court decision upholding the striking out of his claim for specific performance of an agreement for the sale of land in Taveta as time-barred. The applicant argued that the Court had erred in law on limitation, contending that a condition precedent (a letter of allotment) meant the cause of action had not accrued, and further that limitation was a mere technicality ignorable under Article 159(2)(d) and the overriding objective. The respondents opposed, submitting the application was an abuse of process. The Court, drawing on its earlier decision in Benjoh Amalgamated, reaffirmed that it possesses a residual jurisdiction to reopen decided matters, exercisable with circumspection only in exceptional cases such as fraud, bias or other injustice; an alleged error of law is not such a ground, since that would amount to the Court sitting in appeal on its own judgment. It held that the passage referring to 1996 as the year the cause of action arose was a mere typographical slip - the judgment had expressly upheld the High Court's finding that the cause of action arose in 1998 - and invoked rule 35(1) of the Court of Appeal Rules to correct 1996 to 1998. The Court further held that limitation of actions is not a mere technicality but is founded on public policy and important constitutional values, citing Mehta v Shah, Gathoni v Kenya Co-operative Creameries, Letang v Cooper and Popat & Kotecha. The application was dismissed in its entirety with costs to the respondents.

Key legal issues

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01

Whether the Court of Appeal can review its own judgment on the ground of alleged error of law

Holding

No. The residual jurisdiction to reopen a decided matter is exceptional and circumscribed; an invitation to correct an alleged error of law is a disguised appeal from the Court's own judgment and must be refused.

Reasoning

Relying on Benjoh Amalgamated, the Court held that where it is the court of final resort it has residual jurisdiction to reopen decided cases in cases of fraud, bias or other injustice, to be exercised with circumspection and only where the decision is not appealable to the Supreme Court. Re-opening on the basis of an alleged misapplication of the law of limitation would mean the Court sitting in appeal from its own decision, defeating the finality principle. The application was therefore an abuse of that exceptional jurisdiction.

p. 4
02

Whether the reference to 1996 as the year the cause of action arose was an error of law

Holding

No. It was a typographical slip; read holistically and in context, the Court had upheld the High Court's finding that the cause of action arose in 1998, and the slip was corrected under rule 35(1).

Reasoning

The Court found that the applicant's argument rested on a mischievously selective reading of the judgment. Coming immediately after the Court had quoted the High Court's finding that the cause of action arose in 1998 with approval, the reference to 1996 was clearly a slip that ought to read 1998. A holistic and contextual reading makes the Court's intention clear, and the error was the kind of slip curable under rule 35(1), exercised on the Court's own motion to obviate mischievous interpretation.

p. 5
03

Whether limitation of actions is a mere technicality ignorable under Article 159(2)(d) and the overriding objective

Holding

No. Limitation statutes are founded on public policy and underpin important constitutional values, and are not mere procedural technicalities.

Reasoning

Drawing on Mehta v Shah, Gathoni v Kenya Co-operative Creameries, Letang v Cooper and Popat & Kotecha, the Court held that limitation law avoids stale claims, compels diligence, protects defendants from unreasonable delay, and secures fair trial by ensuring claims are brought while evidence is available. Those are important constitutional values underpinned by legislation; the maxim interest reipublicae ut sit finis litium reflects the public interest in conclusiveness of litigation.

p. 5

Legal principles established

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  • The Court of Appeal has a residual jurisdiction, to be exercised with circumspection and only in exceptional cases, to reopen a decided matter that is not appealable to the Supreme Court, such as in cases of fraud, bias or other injustice; an alleged error of law is not a ground for reopening
  • The slip rule under rule 35(1) of the Court of Appeal Rules permits correction of clerical mistakes or accidental slips, but does not permit the Court to sit in judgment on its own previous judgment
  • Limitation of actions is not a mere procedural technicality; it is grounded in public policy and important constitutional values and cannot be ignored under Article 159(2)(d) or the overriding objective
  • A cause of action founded on contract accrues when breach takes place, not when damage is suffered

Court orders

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  1. 1.The application to reopen, review and vary the judgment dated 7th October 2013 is dismissed in its entirety
  2. 2.The Court invokes rule 35(1) of the Court of Appeal Rules and corrects the reference to 1996 on page 4 of the judgment dated 7th October 2013 to read 1998
  3. 3.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 164(3)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 159
  • Limitation of Actions ActSection 4(1)(a)
  • Limitation of Actions ActSection 39
  • Court of Appeal RulesRule 35(1)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (10)

  • Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd
    CA No. Sup. 16 of 2012
  • Ndyanabo v Attorney General
    CA No. 64 of 2001
  • Lakhamshi Brothers Ltd v R Raja & Sons
    (1966) EA 313
  • Raniga v Jivraj
    [1965] EA 700
  • Mwangi v Kiiru
    [1987] KLR 324
  • Mehta v Shah
    [1965] EA 321
  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Letang v Cooper
    [1964] 2 All ER 929
  • Popat & Kotecha Property v State Bank of India Staff
    Civil Appeal No. 3460 of 2000
  • Mtana Lewa v Kahindi Ngala Mwagandi
    CA No. 56 of 2015
On appeal from
Court of Appeal at Malindi
CA No. 191 of 2011
Jurisdiction invoked
Residual jurisdiction of the Court of Appeal to review and reopen its own decisions, as recognised in Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd, together with rule 35(1) of the Court of Appeal Rules (the slip rule)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Mukuru Munge v Florence Shingi Mwawana & 2 others [2016] KECA 54 (KLR)", Case Analysis (2016). Civil Application No. 191 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/54/eng@2016-02-26

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