Thomas Owen Ondiek & another v National Bank of Kenya Ltd & another [2017] KECA 250 (KLR)
The bottom line
#The Court of Appeal confirmed it cannot re-open a decided appeal just because later events went against the losing party.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's power to review or re-open its own concluded appeal
The Court lacks constitutional or statutory jurisdiction to substantively re-open an appeal but may exercise a residual discretionary jurisdiction in exceptional cases of fraud, bias or other real injustice; the disqualifying circumstances must have existed at the time of the decision
The court distinguished appellate courts from trial courts, noting no provision confers jurisdiction to re-open an appeal. Relying on Benjoh Amalgamated Limited v Kenya Commercial Bank Limited, it held the residual jurisdiction is exceptional and the circumstances tainting the impugned decision must exist when the decision is rendered, though they may be discovered later.
Effect of a subsequent nullification of a prior judgment on a finding of res judicata
The applicants' contention that res judicata cannot apply where the initial decision is a nullity was rejected; the res judicata principle, including the constructive requirement in explanation 4 to section 7 of the Civil Procedure Act and Henderson v Henderson, was correctly applied in the impugned judgment
The court held that section 7 of the Civil Procedure Act, read with explanation 4 and the Henderson v Henderson principle, deems matters which ought to have been raised in a former suit to have been directly and substantially in issue. The subsequent order for re-trial in Civil Appeal No. 116 of 2012 postdated the impugned judgment and could not affect it. Further, the judgment was not based solely on res judicata but also on the merits.
Abuse of process and the principle of finality of litigation
The real object of the review application was to re-open and re-litigate HCCC No. 175 of 1999, contrary to the principle of finality; the applicants, having been represented by counsel, were the authors of their misfortune
The court found the applicants' express purpose of aligning the two decisions was a cover for seeking a re-trial. The withdrawal of HCCC No. 115 of 1999 showed the re-trial ordered was not in the 1st applicant's interest. Counsel representing the applicants in both suits should have appreciated the scope of res judicata and acted earlier. Allowing the application would contravene finality.
Legal principles established
#- The Court of Appeal has no constitutional or statutory jurisdiction to substantively re-open a concluded appeal, but retains a discretionary residual jurisdiction to do so only in cases of fraud, bias or other injustice in exceptional circumstances, and the tainting circumstances must have existed at the time the decision was rendered
- A judgment cannot be reversed or reviewed on the basis of an event which occurred after the judgment was rendered
- Res judicata under section 7 of the Civil Procedure Act extends not only to matters actually decided in a former suit but to every matter which might and ought to have been raised in it
Court orders
#- 1.The application for review was dismissed with costs to the respondents
- Jurisdiction invoked
- Section 3 of the Appellate Jurisdiction Act, Rule 1(2) of the Court of Appeal Rules and Order 45 of the Civil Procedure Rules 2010; the court noted there is no constitutional or statutory provision conferring jurisdiction to substantively re-open an appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Owen Ondiek & another v National Bank of Kenya Ltd & another [2017] KECA 250 (KLR)", Case Analysis (2017). Civil Application No. 23 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/250/eng@2017-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.