Habo Agencies Limited v Wilfred Odhiambo Musingo [2019] KECA 211 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can rescind even full-bench rulings where the orders made simply don't match the application actually before the court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to rescind orders under Rule 57(2)
The full Court has jurisdiction under Rule 57(2) to rescind or vary orders made on applications, including full-bench rulings, not just single Judge rulings under Rule 57(1).
The respondent argued Rule 57(2) applied only to single Judge matters. The Court adopted the reasoning of Nambuye and Musinga, JJ.A in Nguruman Limited v Shompole Group, holding that had the Rules Committee intended to confine sub-rule (2) to sub-rule (1) applications, it would have said so expressly. Sub-rule (1) covers single Judge orders; sub-rule (2) covers all other orders. The Court therefore had jurisdiction to rescind the impugned ruling.
Whether the error was a curable slip under Rule 35(1) and (2)
The error was not a clerical mistake or slip of the pen; the operative orders of the impugned ruling dismissed a reference that no longer existed and could not be mapped onto the application for restoration, so rescission rather than correction was required.
The reference had already been allowed on 3rd July 2015, so nothing remained to be dismissed when the restoration application was heard. Although parts of the impugned ruling dealt with restoration, its concluding orders dismissed the reference and the notice of motion of 9th June 2014. Since the determination could not be juxtaposed onto the restoration motion, the slip Rule was unavailable and the interests of justice demanded rescission.
Legal principles established
#- Rule 57(2) of the Court of Appeal Rules empowers the full Court to vary or rescind any order made on an application to the Court, and is not confined to single Judge rulings under Rule 57(1)
- A ruling that purports to decide an application that was no longer pending, and whose operative order cannot be mapped onto the application actually before the court, is not a clerical mistake curable under the slip Rule and should be rescinded in the interests of justice
Court orders
#- 1.The Notice of Motion dated 14th July 2016 seeking rescission of the ruling of 24th June 2016 is allowed with no orders as to costs
- 2.The Notice of Motion for restoration of the appeal is to be heard afresh before a reconstituted bench excluding Koome and Otieno-Odek, JJ.A
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Rule 57(2) of the Court of Appeal Rules - jurisdiction to vary or rescind an order made on an application to the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Habo Agencies Limited v Wilfred Odhiambo Musingo [2019] KECA 211 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 124 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/211/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.