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Court of AppealDismissedCivil Application No. 308 of 2018· [2019] KECA 55 (KLR)

Ali Mohamed Mwanzia v National Bank Of Kenya Limited [2019] KECA 55 (KLR)

Court of Appeal
22 November 2019
William OukoW. OukoAMAsike MakhandiaAMA. K. Murgor
1,732 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 decision rejecting a Kenyan man's late appeal, confirming it can only review its own decisions in narrow, rule-defined situations.

What this practically means

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Executive summary

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The applicant, Ali Mohamed Mwanzi, sought review of the full Court's orders of 13th July 2018 dismissing his reference against a single judge's refusal to extend time to file an appeal against a High Court ruling of 12th March 2010 in HCCC No. 1705 of 1997. His litigation history showed repeated attempts: a record of appeal filed late without leave was struck out in May 2017, a fresh notice and record of appeal were struck out on 19th May 2017, a further extension application before Karanja, JA was refused on 29th September 2017, and the reference to the full Court was dismissed on 13th July 2018. In the review application filed on 26th October 2018, the applicant explained the delay by the four-year wait for determination of his pauper application, a fact he had not placed before the single judge. The respondent opposed, submitting that the Court was functus officio, the application was res judicata and an abuse of process. The Court framed the threshold question as its own jurisdiction to reopen a full-bench decision. Relying on Article 164(3) of the Constitution, section 3 of the Appellate Jurisdiction Act, and Owners of the Motor Vessel 'Lillian S' v Caltex Oil, it held that review of its own decisions is confined to rule 35 (the slip rule) and rule 51 parameters. The applicant's ground amounted to additional material he failed to place before the single judge and fell outside those parameters; the Court accordingly lacked jurisdiction, dismissed the application, and made no orders as to costs in light of the applicant's pauper fee exemption.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to review or reopen a decision of a full bench dismissing an extension-of-time application

Holding

It has no such jurisdiction except in the specific circumstances of rules 35 and 51 of the Court of Appeal Rules; the application did not meet those parameters and was dismissed

Reasoning

The Court traced its jurisdiction to Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act, both limiting it to hearing and determining appeals. Review of its own decisions is confined to the slip rule (rule 35) and the limited variation powers in rules 51 and 57. The applicant's ground - that he had omitted to tell the single judge about a pending pauper application - amounted to additional material he neglected to place before the judge, outside the review parameters. Lacking jurisdiction, the Court could take no further step.

p. 3
02

Whether the respondent's objections of functus officio and res judicata were sustained

Holding

The Court did not rule on these objections directly, instead dismissing the application on the anterior ground of want of jurisdiction; the objections were argued by counsel but not expressly adopted in the holding

Reasoning

Counsel for the respondent submitted that the Court was functus officio and the application res judicata, and an abuse of process. The Court treated the threshold question as its own jurisdiction to review a full-bench decision, and resolved the application on that basis without expressly pronouncing on functus officio or res judicata. The dismissal on jurisdiction renders those submissions unnecessary to the disposition.

p. 2

Legal principles established

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  • The Court of Appeal's jurisdiction is limited to hearing and determining appeals; its decisions may be reviewed only in the specific circumstances provided by rules 35 and 51 of the Court of Appeal Rules (the slip rule and extension of time situations), and a party who failed to place material before a single judge cannot use review to introduce it

Court orders

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  1. 1.The application for review is dismissed for lack of jurisdiction
  2. 2.No orders as to costs, the applicant having been exempt from paying court fees

Authorities

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Legislation

  • Constitution of KenyaArticle 164(3)
  • Appellate Jurisdiction ActSection 3
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 35(1)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 47
  • Court of Appeal RulesRule 51
  • Court of Appeal RulesRule 57(1)

Cases cited (2)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Standard Chartered Financial Services Limited & 2 others vs Manchester Outfitters (Suiting Division) Limited (Now known as King Woolen Mills Limited & 2 others
    [2016] eKLR
On appeal from
Court of Appeal (full bench decision under review)
Civil Application No. 308 of 2018 (review of orders of 13th July 2018; underlying HCCC No. 1705 of 1997)
Jurisdiction invoked
Article 164(3) of the Constitution and Section 3 of the Appellate Jurisdiction Act, read with rules 35, 51 and 57 of the Court of Appeal Rules

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, "Ali Mohamed Mwanzia v National Bank Of Kenya Limited [2019] KECA 55 (KLR)", Case Analysis (2019). Civil Application No. 308 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/55/eng@2019-11-22

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