Africa Centre For Open Governance & another v John Harun Mwau & 2 others [2020] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed judges can review their own judgments, but any party who won a judgment must get a fair hearing before it is taken away.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge had jurisdiction to review and set aside her judgment, i.e. whether she was functus officio
- 2.If so, whether in the circumstances she was entitled to set aside the judgment as she did
Key legal issues
#Whether a judge who has delivered judgment is functus officio when an application for review is made against that judgment
No. Review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules is an exception to the doctrine of functus officio, and the review jurisdiction cannot be defeated on functus officio grounds.
Section 80 and Order 45 confer on the High Court power to review its judgments in specified circumstances: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. On review the court is not re-engaging with the merits - the province of an appellate court - but reconsidering its decision on limited grounds. Once satisfied, the court may set aside its decision and order a rehearing. The Court endorsed authorities cautioning against a mechanical extension of functus officio and noted Telkom Kenya's recognition of exceptions to the doctrine.
Whether the High Court has inherent jurisdiction to review a decision tainted by alleged bias or violation of natural justice, even outside the statutory review provisions
Yes, where the allegation is made on reasonable grounds established to the required standard, citing the House of Lords in Re Pinochet (No.2).
Beyond section 80 and Order 45, the Court held that a court possesses inherent jurisdiction to revisit a decision where it is alleged that the decision is tainted by violation of the rules of natural justice, particularly the nemo iudex in causa sua rule. The Court found support in Re Pinochet (No.2), where the House of Lords accepted it had inherent jurisdiction to rescind or vary its judgment to correct an injustice arising from undisclosed links between a judge and a party.
Whether the learned judge afforded the parties a fair hearing before vacating her judgment
No. The review application was determined on a date fixed only for mention for directions, before any respondent had filed a response, denying the parties a fair hearing and violating natural justice.
On 31st July 2014 the application was listed for mention for directions, not for hearing. None of the respondents had responded; counsel for the DPP had not even been served, and counsel for the appellants sought time to take instructions. The understanding of the parties was that directions would be given, yet the judge wrote and read a ruling determining the application. Citing Rahab Wanjiru Evans v Esso Kenya Ltd and later authorities, the Court held a judgment in a party's favour cannot be taken away without a fair hearing; a decision in breach of natural justice is null and void.
Whether a de novo hearing following vacation of a judgment on review violates res judicata or the double jeopardy rule
No. Double jeopardy is a principle of criminal trials, and res judicata requires an existing judgment of a competent court, which ceases to exist upon vacation on review.
The Court held that neither principle was relevant. Double jeopardy, anchored in Article 50(2)(n) of the Constitution, prohibits repeat criminal prosecution after acquittal or conviction and does not apply to civil proceedings. Res judicata presupposes a judgment or ruling of a competent court between the same parties on the same issues; where a successful review results in vacation of the decree or order, no such judgment survives to bar subsequent litigation.
Legal principles established
#- The High Court's review jurisdiction under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules is an exception to the doctrine of functus officio and cannot be defeated on the ground that the court has pronounced judgment.
- A court has inherent jurisdiction to review its own decision in the interest of justice where the decision is alleged, on reasonable grounds established to the required standard, to be tainted by violation of the rules of natural justice, including the nemo iudex in causa sua rule.
- Unless the parties consent, a court should not determine substantive issues on a date the matter is listed for mention; doing so violates the parties' right to a fair hearing.
- A judgment in favour of a party cannot be taken away without first affording that party a fair opportunity to be heard; a decision made in violation of the rules of natural justice is null and void.
- Upon a successful application for review that results in vacation of a decree or order, there is no longer a judgment of a competent court in existence capable of founding res judicata; double jeopardy, being a criminal-law principle, has no application to civil review.
Court orders
#- 1.Appeal allowed
- 2.The matter remitted back to the High Court for the hearing on merit of the application dated 3rd July 2014, by a judge other than Mumbi Ngugi, J.
- 3.Africog, Gastrow and the DPP to have costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Const. Pet. No. 233 of 2011 (ruling of 31st July 2014)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (Constitution of Kenya, Article 164; Civil Procedure Act review provisions considered)
Relief refused
#Remittal of the application for review back to Mumbi Ngugi, J.
The learned judge had recused herself from the matter, so remitting the application to her would serve no purpose
Upholding of the order vacating the judgment and directing a de novo hearing
The parties were denied a fair opportunity to be heard on the review application, which was determined on a date fixed only for mention
Costs
Africog, Gastrow and the DPP will have costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The jurisdiction of the court to review its judgments and rulings under the circumstances set out in Order 45 therefore cannot be defeated on the argument that the court is functus officio.
Even outside the provisions we have quoted above, we believe that the court has inherent jurisdiction to review its decision in the interest of justice where it is alleged, on reasonable grounds to be established to the required standard, that the decision is tainted by violation of the rules of natural justice and in this case the nemo iudex in causa sua rule.
This Court has consistently held that unless the parties otherwise consent, a court should not delve into and determine substantive issues on a date when the case is listed for mention.
Africog and Gastrow had a judgment in their favour which the court was not entitled to take away without first affording them a fair opportunity to be heard.
The order that there-fore commends itself to us is to remit the matter back to the High Court for the hearing on merit of the application dated 3rd July 2014, by a judge other than Mumbi Ngugi, J. Africog, Gastrow and the DPP will have costs of this appeal. It is so ordered.
Issues in the judgment
#The judgment renders the trial judge's name inconsistently as 'Mumbi Njugi, J.' on the cover page and 'Mumbi Ngugi, J.' in the body; the body spelling is used consistently in the analysis.
The judgment refers to 'Const. Pet. No. 233 of 2011' on the cover but to 'Petition No. 233A of 2011' when quoting the impugned remedies.
The petition respondents are described as four ('four respondents') but only three are named in that sentence; Gastrow and Africog are 2nd and 1st appellants in this appeal, and the motion is said to have been filed 'under certificate of agency', an apparently erroneous expression.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngethe v Ethics and Anti-Corruption Commission & another (Civil Appeal E006 of 2020) [2026] KECA 979 (KLR)[2026] KECA 979 (KLR)15 May 2026followed
- Kenya Engineering Workers Union (In Receivershiр) & 173 others v Athi River Steel Plant (In Receivership) & another (Cause 661 of 2019) [2025] KEELRC 2162 (KLR)[2025] KEELRC 2162 (KLR)18 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Africa Centre For Open Governance & another v John Harun Mwau & 2 others [2020] KECA 98 (KLR)", Case Analysis (2020). Civil Appeal No. 300 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/98/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.