Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment (application dated 27th April 2022, Court of Appeal at Mombasa)· [2023] KECA 933 (KLR)

Maaa (suing In His Capacity As The Administrator of The Estate of Amaa - Deceased) v Fss

Court of Appeal of Kenya
28 July 2023
1,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to review its own final judgment, confirming that review is reserved for exceptional cases showing real injustice, and dismissed the application with costs.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Odungu, JJ.A) on an application by MAAA, administrator of the estate of AMAA (deceased), seeking review of prayer (c) of the Court's judgment of 18th February 2022 in a second appeal arising from maintenance, alimony and compensation awards made by the Mombasa Kadhi's Court in favour of his father's former wife, FSS. The Kadhi's Court had awarded her Kshs 6,925,000.00 in various heads; the High Court upheld that judgment on 21st May 2021; and on second appeal the Court of Appeal set aside only the awards of Kshs 3,200,000.00 (past maintenance) and Kshs 2,500,000.00 (alimony/Mut'a), remitting the matter to the Kadhi's Court to inquire into the financial ability of the estate and assess a fair award for alimony and compensation. The applicant argued the awards were unpleaded, that the respondent had abandoned the compensation claim, that under Islamic law alimony depends on the husband's means and not the estate of a deceased husband, and that conflicting Court of Appeal precedents had created confusion. The respondent opposed, noting the review application was one of many delaying tactics and that the Kadhi's Court had already conducted the ordered assessment. The Court reaffirmed that it possesses only a residual jurisdiction to reopen a concluded matter, exercisable exceptionally where obviating injustice outweighs finality, citing Standard Chartered v Manchester Outfitters, Benjoh Amalgamated, the Supreme Court's approval in Menginya Salim Murgani, and Kamau James Gitutho. The applicant had not shown injustice or a miscarriage of justice; his complaints amounted to asking the Court to sit on appeal over its own judgment. Since the judgment had already been executed, the Court would be acting in vain. The application was dismissed with costs to the respondent.

Key legal issues

#
01

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

Holding

The Court has residual jurisdiction to reopen and rehear a concluded matter where the interests of justice demand, exercisable only in exceptional circumstances where obviating injustice outweighs the principle of finality. The applicant failed to meet that threshold.

Reasoning

Relying on Standard Chartered Financial Services v Manchester Outfitters, Benjoh Amalgamated v Kenya Commercial Bank, and the Supreme Court's endorsement in Menginya Salim Murgani v Kenya Revenue Authority, the Court reiterated that review is exceptional. Kamau James Gitutho confirms finality is not displaced. The applicant's complaints were in substance an appeal against the Court's own judgment, not a proper review.

p. 3
02

Effect of execution of the judgment sought to be reviewed

Holding

Where the judgment has already been executed and the trial court has carried out the ordered assessment, an application for review would require the Court to act in vain and must fail.

Reasoning

The respondent's unchallenged assertion that the Kadhi's Court had already conducted the assessment of the deceased's estate's means in compliance with the Court's judgment meant the review application was overtaken by events. Granting it would serve no purpose.

p. 4

Legal principles established

#
  • The Court of Appeal is clothed with residual jurisdiction to reopen and rehear a concluded matter, but only in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation.
  • An applicant for review of a concluded Court of Appeal decision must demonstrate that the decision occasioned real injustice or miscarriage of justice that has eroded public confidence in the administration of justice; the review jurisdiction is not an avenue for the Court to sit on appeal over its own decisions.
  • The existence of the Court's review jurisdiction does not negate the principle of finality in litigation.

Court orders

#
  1. 1.The application dated 27th April 2022 seeking review and setting aside of prayer (c) of the judgment delivered on 18th February 2022 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Court of Appeal of Kenya
Not stated (judgment delivered 18th February 2022)
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya and sections 3(2), 3A & B of the Appellate Jurisdiction Act; rules 1(2) and 42 of the Court of Appeal Rules (residual jurisdiction to review the Court's own decisions)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maaa (suing In His Capacity As The Administrator of The Estate of Amaa - Deceased) v Fss", Case Analysis (2023). Not stated in the judgment (application dated 27th April 2022, Court of Appeal at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/933/eng@2023-07-28

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