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Court of AppealDismissedCivil Appeal (Application) No. 116 of 2016· [2020] KECA 292 (KLR)

Marvin Opiyo Ambala & 2 others v Oduor Hawi Ambala & another [2020] KECA 292 (KLR)

Court of Appeal of Kenya
9 October 2020
3,512 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 declined to reopen its 2018 family estate ruling, confirming that review of a decided appeal is allowed only in truly exceptional circumstances.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Gatembu Kairu, Murgor and Sichale, JJ.A) on two applications seeking review and setting aside of that Court's judgment of 26th April 2018, which had set aside a High Court judgment of 29th June 2016 in Succession Cause No. 68 of 1986 relating to the estate of Aggrey Otieno Ambala, restored a consent order of 3rd December 2004 for distribution of the estate, and revoked orders cancelling transfers of estate properties. The first application was by Marvin Opiyo Ambala, Nancy Ambala and Auma Ambala, beneficiaries who claimed they were never notified of the appeal, that their advocates lacked authority, that an affidavit attributed to Marvin was forged, and that their right to fair hearing was violated; they also sought joinder as interested parties and a change of advocates. The second application by Farooq Asif Butt, a purchaser of part of estate property, sought substitution of the judgment with orders nullifying the consent order and various grants, and re-distribution of estate lands, coupled with constitutional claims under Articles 40, 50 and 159. The Court reaffirmed that its residual jurisdiction to review its own decisions is exercisable only in exceptional circumstances where injustice outweighs the finality principle, citing Benjoh Amalgamated and Standard Chartered Financial Services. It found the applicants were duly served through the firm of J.M. Theuri & Associates, whose claim of non-notification was not truthful, and held that the second applicant was seeking to re-litigate determined matters. Both applications were dismissed with each party bearing its own costs.

Key legal issues

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01

Scope of the Court of Appeal's residual jurisdiction to review its own judgment

Holding

The jurisdiction is exceptional, exercised cautiously to correct errors occasioning real injustice, and only where injustice outweighs the finality principle.

Reasoning

Relying on Benjoh Amalgamated and Standard Chartered Financial Services, the Court reiterated that a non-final appellate court retains a narrow residual power to reopen concluded matters to correct errors of law occasioning real injustice or miscarriage of justice, eroding public confidence in the administration of justice. Exceptional circumstances must be demonstrated by the applicant; mere dissatisfaction with the outcome does not suffice.

p. 3
02

Adequacy of service on a party through its advocate on record

Holding

Service of the notice of appeal and hearing notice on the firm of advocates that acted in the succession cause was adequate; the applicants' claim of denied fair hearing failed.

Reasoning

The notice of appeal dated 8th July 2016 and the hearing notice were served on and acknowledged by J.M. Theuri & Associates, which had acted for all the applicants and which filed the submissions relied upon at the hearing. If the firm had ceased acting it would have declined service; its claim of non-notification was found not truthful. The applicants bore the duty to notify the Court of any change of representation.

p. 3
03

Whether alleged errors of fact and law in the judgment justify review

Holding

Complaints that the Court erred in fact and law amount to an attempt to re-litigate and fall outside residual review jurisdiction; the second application was dismissed.

Reasoning

The second applicant's grievances mirrored the issues already determined in the appeal - whether the consent of 3rd December 2004 was valid, whether an application for confirmation existed, and whether the advocates had authority. The Court characterized his further prayers as framing an originating constitutional petition seeking declarations of unconstitutionality, which cannot be entertained on review of a concluded appellate judgment.

p. 4

Legal principles established

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  • The Court of Appeal has residual jurisdiction to review its own decisions, exercisable only in exceptional circumstances where the need to obviate injustice outweighs the principle of finality in litigation.
  • A party whose advocate on record was duly served with a notice of appeal and hearing notice is adequately served; it is incumbent on such a party to notify the Court of a change of advocates or that they are acting in person.
  • The residual review jurisdiction cannot be used to re-litigate matters already determined or to mount what is in substance an originating constitutional petition or reference from the judgment.

Court orders

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  1. 1.Both applications dated 28th August 2018 and 19th July 2019 dismissed
  2. 2.Each party to bear its own costs of the applications
On appeal from
Court of Appeal of Kenya (Githinji, Okwengu & Mohammed, JJ.A)
Succession Cause No. 68 of 1986 (High Court judgment of 29th June 2016, set aside by Court of Appeal judgment of 26th April 2018)
Jurisdiction invoked
Residual jurisdiction of the Court of Appeal to review its own decisions (inherent jurisdiction; Court of Appeal Rules, rule 79 cited)

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, "Marvin Opiyo Ambala & 2 others v Oduor Hawi Ambala & another [2020] KECA 292 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 116 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/292/eng@2020-10-09

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