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Court of AppealDismissedCivil Application No 39 of 2015

Harun Osoro Nyambuki v Peter Mujunga Gathuru & another [2016] KECA 518 (KLR)

Court of Appeal
27 May 2016
1,918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed it cannot stay or review its own final judgment except in rare, exceptional cases showing real injustice.

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, Warsame and Azangalala, JJ.A) dated 27th May 2016 on an application by Harun Osoro Nyambuki seeking a stay of execution of, and the review and setting aside of, the Court's own judgment of 30th January 2015 in Civil Appeal No 184 of 2004, which had allowed the 1st respondent's appeal and ordered the transfer of 2½ acres of LR 12767/11 or, in the alternative, a refund of its current market value. The applicant complained that the appeal had been decided without the Court having the benefit of his written submissions, alleging violations of Articles 50 and 51 of the Constitution. On the stay prayer, the Court held that rule 5(2)(b) applies only where an appeal under rule 75 is pending; after a final judgment of the Court the Court is functus officio and has no jurisdiction to stay its own judgment, following Jennifer Koinante Kitarpei v Alice Wahito Ndegwa. On review, the Court acknowledged a residual jurisdiction to review its own decisions in exceptional circumstances, drawing on Musiara Ltd v William Ole Ntimama, Chris Mahinda, Benjoh Amalgamated and Jimnah Mwangi Gichanga, but held that the omission of the applicant's submissions did not materially affect the judgment since the Court's duty is to re-evaluate the trial evidence. The application was dismissed with no order as to costs.

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 can grant a stay of execution of its own judgment under rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether the applicant has made out a case for the review, rescission or setting aside of the Court's judgment of 30th January 2015
  3. 3.Whether the preparation of the judgment without the applicant's written submissions violated his constitutional right to a fair trial and occasioned a gross injustice warranting review

Key legal issues

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01

Jurisdiction to grant stay of execution of the Court's own judgment under rule 5(2)(b)

Holding

The Court cannot entertain a rule 5(2)(b) application for stay of its own final judgment; such applications contemplate stays of High Court or tribunal judgments pending appeal, and after final judgment the Court is functus officio.

Reasoning

Rule 5(2)(b) operates in conjunction with rule 75, which governs notices of appeal to be ventilated in the Court of Appeal. An application under that rule presupposes a pending appeal. Once a final judgment has been delivered on a substantive appeal, the Court's jurisdiction is spent and it becomes functus officio. The Court adopted its earlier holding in Jennifer Koinante Kitarpei v Alice Wahito Ndegwa to this effect and declined to entertain the stay prayer.

p. 2
02

Residual jurisdiction to review the Court's final judgment

Holding

The Court has residual jurisdiction to review, vary or rescind its decisions in exceptional circumstances, but the applicant did not meet the parameters: no significant injustice was established.

Reasoning

The Court reviewed Musiara Ltd v William Ole Ntimama, Chris Mahinda v Kenya Power & Lighting Co Ltd, Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank and Jimnah Mwangi Gichanga v Attorney General, which confine the residual jurisdiction to cases of errors of law occasioning real injustice, exercised cautiously where there is no appeal to the Supreme Court, and reluctant where there is laches or vested third-party rights. The applicant failed to show that the absence of his written submissions materially affected the judgment.

p. 4
03

Whether judgment delivered without the applicant's written submissions breached fair-trial rights and justified review

Holding

No, the failure to consider the applicant's written submissions did not materially affect the outcome because the Court's duty on appeal is to re-evaluate and reconsider the evidence tendered at trial, which was done.

Reasoning

The Court reminded itself that on appeal it re-evaluates the trial evidence rather than deciding on submissions alone. There was no indication that the applicant's trial evidence was not considered. The applicant also bore responsibility for filing submissions late, only after the notice of judgment was issued on 19th January 2015. Consequently no gross injustice or exceptional circumstance was made out, and the alleged Article 50/51 violations did not warrant review.

p. 4

Legal principles established

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  • The Court of Appeal has no jurisdiction under rule 5(2)(b) to stay execution of its own final judgment; rule 5(2)(b) applies only where an appeal under rule 75 is pending, and after final judgment the Court is functus officio.
  • The Court of Appeal has residual jurisdiction to review its own decisions to which there is no appeal, but it must be exercised cautiously, only in exceptional circumstances where a significant injustice has probably occurred and there is no alternative effective remedy.

Court orders

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  1. 1.The application for stay of execution of the judgment of 30th January 2015 was not entertained, the Court holding it had no jurisdiction under rule 5(2)(b)
  2. 2.The application for review of the judgment dated 30th January 2015 was dismissed
  3. 3.No order as to costs

The bench

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

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
Court of Appeal
Civil Appeal No 184 of 2004
Jurisdiction invoked
Rule 1 (inherent jurisdiction) and rule 57 of the Court of Appeal Rules, and rule 5(2)(b) in respect of the stay prayer

Relief refused

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Stay of execution of the Court's judgment dated 30th January 2015

Rule 5(2)(b) does not empower the Court to stay its own final judgment; once final judgment is delivered the Court becomes functus officio

p. 2

Review and setting aside/rescission of the judgment dated 30th January 2015

No exceptional circumstances shown; the absence of the applicant's written submissions did not materially affect the judgment since the Court re-evaluates the trial evidence

p. 4

Costs

The application was dismissed with no order as to costs

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.

Therefore, once a final judgment has been delivered in respect of any substantive appeal, this court becomes functus officio. We find that this Court has no jurisdiction to entertain an application under Rule 5(2)(b) after a final judgment of this court has been rendered.
p. 2Functus officio and the limits of rule 5(2)(b) stay jurisdiction
It is our finding that this Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence in the administration of justice.
p. 3Residual jurisdiction to review the Court of Appeal's own decisions
The fact that the Court was constrained to prepare a judgment without his written submissions did not materially affect the judgment of the Court; we remind ourselves that the duty of this Court when hearing an appeal is to reevaluate and reconsider the evidence that was tendered at trial.
p. 4Effect of failure to consider written submissions on an appeal
This application is therefore devoid of merit, and we hereby order it dismissed with no order as to costs.
p. 4Final orders - dismissal and costs

Issues in the judgment

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minor

The judgment records the applicant as invoking Article 51 of the Constitution for the right to a fair trial, though fair-trial rights are ordinarily located in Article 50, which the applicant separately cited for alleged discrimination; the judgment does not resolve this apparent mislabeling.

minor

The coram lists Azangalala JJ.A but the judgment under review was delivered by Karanja, Warsame & Gatembu JJ.A, and the underlying appeal coram differs from the panel deciding this application.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Harun Osoro Nyambuki v Peter Mujunga Gathuru & another [2016] KECA 518 (KLR)", Case Analysis (2016). Civil Application No 39 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/518/eng@2016-05-27

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