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Court of AppealDismissedCivil Application No. 211 of 2018· [2019] KECA 723 (KLR)

Florence Seyanoi Kibera v Deborah Achieng Aduda & another [2019] KECA 723 (KLR)

Court of Appeal
24 May 2019
1,832 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 refused to revisit its own ruling, confirming that final judgments cannot be re-argued through disguised review applications.

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 (Ouko, P, Musinga and Gatembu, JJ.A) dated 24th May 2019 dismissing an application for review under Rule 47(1) and (2) of the Court of Appeal Rules, brought by Florence Seyanoi Kibera seeking review of the Court's own ruling of 8th March 2019 which had dismissed her Rule 5(2)(b) application for stay of execution and injunction pending appeal against a High Court judgment (K. Bor, J) ordering specific performance of a sale of one acre excised from L.R. No. 5898/22 in Karen. The applicant alleged that on 8th March 2019 two conflicting rulings had been delivered - one in open court allowing her motion and a second in chambers dismissing it - and contended that the Court had abdicated jurisdiction and violated her right to be heard. The respondents argued that the doctrine of finality applied, that only the slip rule could reopen a finalized decision, and that the burden lay on the applicant to prove a second ruling. The Court applied the functus officio principle and, following Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd, confirmed its residual jurisdiction to review non-appealable decisions to correct errors occasioning real injustice, but held this must be exercised with circumspection. Finding the application a circuitous, bad-faith challenge to the merits, brought for an improper ulterior motive and unsupported by evidence of any second ruling, the Court dismissed it with costs to the respondents.

Key legal issues

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01

Whether the Court of Appeal has residual jurisdiction to review its own decisions

Holding

The Court has residual jurisdiction to review its decisions to which there is no appeal, to correct errors of law that have occasioned real injustice, to be exercised cautiously and only where it promotes public interest and confidence in the justice system.

Reasoning

Relying on Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd, the Court affirmed that where a court is of final resort it has residual jurisdiction to reopen decided matters in cases of fraud, bias or other injustice, balancing the finality principle against the justice principle. Since the Court of Appeal is not the final court, this jurisdiction exists but must be invoked with circumspection.

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02

Whether the application met the threshold for review

Holding

It did not; it was a circuitous challenge to the merits of the 8th March 2019 ruling, brought in bad faith for an improper ulterior motive and constituting an abuse of process.

Reasoning

The Court found that the applicant's real grievance - the alleged existence of two conflicting rulings - was unsupported by evidence, since the ruling on record was dated 8th March 2019 and signed by all three bench members. The application, couched as a review, actually sought to re-litigate the merits of the dismissed Rule 5(2)(b) application, which the Court, being functus officio, could not entertain absent the laid-down thresholds.

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03

Whether a second, conflicting ruling was delivered on 8th March 2019 allowing the applicant's motion

Holding

No; the applicant produced no evidence of any ruling contrary to the one on record, dated 8th March 2019 and signed by all three members of the bench.

Reasoning

The respondent maintained that only one ruling was delivered that day, dismissing the motion, and that the burden lay on the applicant to prove the existence of a second ruling allowing her application. The Court agreed, finding the applicant had not furnished any proof of a ruling contrary to the one on record.

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Legal principles established

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  • A court, after passing judgment, becomes functus officio and cannot revisit the judgment on merits or exercise judicial power over the same matter save as provided by law
  • The Court of Appeal, not being the final court, has residual jurisdiction to review its own decisions where there is no appeal, to correct errors of law occasioning real injustice, to be exercised cautiously
  • Pursuing a claim in bad faith, with no genuine belief in its merits, or for an improper ulterior motive, is an abuse of the process of the court, against which the court has the right to protect itself

Court orders

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  1. 1.The application for review is dismissed with costs to the respondents

Authorities

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Legislation

  • Rules of the Court (Court of Appeal Rules)Rule 5(2)(b)
  • Rules of the Court (Court of Appeal Rules)Rule 47(1) and (2)
  • Rules of the Court (Court of Appeal Rules)Rule 35(1)(2)
  • Rules of the Court (Court of Appeal Rules)Rule 1(2)
  • Appellate Jurisdiction ActSection 3
  • Constitution of KenyaBill of Rights / access to justice provisions (general reference)

Cases cited (4)

  • Metropolitan Bank v Pooley
    (1885) 10 App Cas 210, 220-221
  • Menginya Salim Murgani v Kenya Revenue Authority
    Civil Application No. 4 of 2014
  • Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd
    Civil Application No. Sup. 16 of 2012
  • Nguruman Limited v Shompole Group Ranch & Anor
    Civil Application No. NAI 90 of 2013
On appeal from
Court of Appeal (ruling under review, same court)
Civil Application No. 211 of 2018
Jurisdiction invoked
Rule 47(1) and (2) of the Court of Appeal Rules (application for review of a ruling of the Court of Appeal); inherent powers under section 3 of the Appellate Jurisdiction Act

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, "Florence Seyanoi Kibera v Deborah Achieng Aduda & another [2019] KECA 723 (KLR)", Case Analysis (2019). Civil Application No. 211 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/723/eng@2019-05-24

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