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Court of AppealPartially AllowedCivil Application No. 65 of 2019· [2021] KECA 774 (KLR)

Centurion Engineers and Builders Ltd v Kenya Bureau of Standards

Court of Appeal
19 March 2021
3,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it can correct its own fundamental errors: a flawed consolidation of two applications was rescinded and the matters restored for fresh, separate hearings.

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), Nambuye and Koome JJ.A.) delivered on 19th March 2021 on a notice of motion by Kenya Bureau of Standards seeking recall, review and rescission of the Court's ruling of 20th December 2019 in Civil Application No. Nai 65 of 2019. The impugned ruling had disposed of two consolidated interlocutory applications: the Bureau's Rule 83 application seeking a declaration that Centurion's leave to appeal had lapsed and its notice of appeal be deemed withdrawn, and Centurion's Rule 4 application for extension of time to file the record of appeal. Invoking sections 3, 3A and 3B of the Appellate Jurisdiction Act, Rule 57(2) of the Court of Appeal Rules and Article 159(2) of the Constitution, the Bureau argued the ruling contained errors on its face: disregard of the Court's own 19th September 2019 directions, failure to consider its replying affidavit, and determination of one application without hearing the other. The Court reiterated its settled residual jurisdiction to review its own decisions, exercisable sparingly and with circumspection in cases of fraud, bias or other injustice, particularly where decisions are not appealable to the Supreme Court. It found the consolidation of the two applications was a fundamental jurisdictional error, since the Bureau's application required a full court while Centurion's required a single Judge, and no rule authorised a mixed disposal; this oversight was not an accidental slip curable under Rule 35(2). The Court allowed the application, rescinded the ruling of 20th December 2019, restored both applications to their status as at 19th September 2019, ordered them heard separately with No. 71 of 2019 to be determined first by a single Judge in chambers and expeditiously thereafter, and directed each party to bear its own costs.

Key legal issues

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01

Scope of the Court's residual jurisdiction under Rule 57(2) to review its own decisions

Holding

The Court has residual jurisdiction to review, recall and rescind its own decisions, exercisable sparingly, cautiously and exceptionally, and not as a disguised appeal against the merits.

Reasoning

Drawing on Benjoh Amalgamated, Moi University, Mukuru Munge and Niels Bruel, the Court reaffirmed that finality of its decisions must be balanced against the justice principle, and that the power applies in cases of fraud, bias or other injustice, especially where the decision is not appealable to the Supreme Court. The applicant invoked this jurisdiction on the basis that the orders of 20th December 2019 were not appealable to the Supreme Court.

p. 4
02

Whether the consolidation of the two applications was jurisdictionally flawed

Holding

The consolidation was erroneous: the respondent's application in No. 65 of 2019 fell for determination by a full court while the applicant's application in No. 71 of 2019 fell for determination by a single Judge, and no provision of law authorised such a mixed disposal. Item 8 of the 19th September 2019 directions overlooked this jurisdictional issue.

Reasoning

The Court held that the consolidation and joint hearing of applications requiring different judicial compositions lacked any statutory or rule-based foundation. The resulting error was fundamental and jurisdictional, not an accidental slip curable under Rule 35(2), and justified recalling and rescinding the ruling of 20th December 2019 and restoring the applications to their status as at 19th September 2019.

p. 4
03

Whether the alleged errors amounted to an accidental slip curable under Rule 35(2)

Holding

The error could not be cured under the slip rule because it went to the fundamental jurisdictional question of the mode of procedure, not a clerical or arithmetic mistake.

Reasoning

The respondent had argued the review application was a thinly veiled appeal against the merits and that any correction fell under the slip rule. The Court rejected this, holding that the flawed consolidation was an oversight on a jurisdictional issue, and declined to interrogate the merits of the pending applications to avoid prejudicing their fresh disposal.

p. 5

Legal principles established

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  • The Court of Appeal has residual jurisdiction to review, recall and rescind its own decisions, to be exercised sparingly, cautiously and exceptionally, particularly where decisions are not appealable to the Supreme Court
  • Where a court erroneously exercises a jurisdiction it does not possess - including in the mode of disposal of consolidated applications - the error is a fundamental jurisdictional flaw, not an accidental slip curable under the slip rule, and grounds recall and rescission of the resulting orders
  • Jurisdiction is everything; a court without jurisdiction must down tools and its decision amounts to nothing

Court orders

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  1. 1.Both applications restored 'ante' to their respective status in the litigation as at 19th September 2019
  2. 2.Item 8 of the directions of 19th September 2019 recalled, reviewed, set aside and substituted with an order that the two applications (Nos. Nai 65 of 2019 and Nai 71 of 2019) be heard separately
  3. 3.The hearing of Application No. Nai 65 of 2019 to await the outcome of the determination by a single Judge in chambers of Application No. Nai 71 of 2019
  4. 4.Both applications to be listed for hearing and determination expeditiously on priority basis starting with No. 71 of 2019
  5. 5.Each party to bear own costs
On appeal from
Court of Appeal (Nairobi)
Civil Application No. Nai 65 of 2019
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Rule 57(2) of the Court of Appeal Rules, 2010 and Article 159(2) of the Constitution of Kenya - the Court's residual jurisdiction to recall, review and rescind its own decisions

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, "Centurion Engineers and Builders Ltd v Kenya Bureau of Standards", Case Analysis (2021). Civil Application No. 65 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/774/eng@2021-03-19

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