Barasa & 2 others v Musundi & another (Civil Application E121 of 2021) [2024] KECA 50 (KLR)
The bottom line
#The Court of Appeal confirmed it can only reopen its own decisions in truly exceptional cases, and dismissed this family land dispute application with costs.
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 Court has jurisdiction to review its own judgment or order in a succession-related appeal under the Appellate Jurisdiction Act and Court of Appeal Rules
- 2.Whether the applicants met the high threshold for exercise of the Court's residual jurisdiction under Sections 3A and 3(2) of the Appellate Jurisdiction Act to set aside the ruling of 4th November 2022 deeming their notice of appeal withdrawn
- 3.Whether a record of appeal was in fact filed at the Eldoret Sub-Registry and served on the respondents
Key legal issues
#Applicability of Section 80 CPA and Order 45 CPR to review of Court of Appeal decisions
These review provisions apply only to matters heard under the Civil Procedure Act and Rules; they do not confer review powers on the Court of Appeal, whose appellate jurisdiction is governed by the Appellate Jurisdiction Act and Court of Appeal Rules, neither of which confers power to review its own judgments or orders.
The Court held that the review machinery in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules is confined to proceedings under that Act. The Court of Appeal's jurisdiction is instead governed by the Appellate Jurisdiction Act and its Rules, which contain no review power. A party seeking review by the Court of Appeal must therefore anchor the application on the Court's residual jurisdiction under Sections 3A and 3(2) of the Appellate Jurisdiction Act, as the applicants here rightly did.
Threshold for exercise of the Court's residual jurisdiction to review its own decision
The residual jurisdiction exists but must be exercised cautiously, only in exceptional circumstances where injustice would otherwise occur, in the public interest and to enhance confidence in the justice system; the applicants did not meet it.
Relying on Benjoh Amalgamated and Standard Chartered Financial Services, the Court reaffirmed that it is not the final court but possesses residual jurisdiction to review its own decisions to correct errors of law occasioning real injustice. That jurisdiction is exceptional and is outweighed by the principle of finality in litigation unless the need to obviate injustice prevails. The applicants failed to show that a record of appeal was filed or served, so the ruling of 4th November 2022 was properly rendered and there was no basis to reopen it.
Whether a record of appeal was filed and served as alleged
The annexures relied on referred only to service of the notice of appeal effected on 26th July 2019, which could not be service of a record of appeal allegedly filed on 25th August 2020; the Court was not persuaded any record of appeal was filed or served.
The Court examined the alleged error on the face of the record. The applicants claimed they filed a memorandum and record of appeal on 3rd August 2020 at the Eldoret Sub-Registry on 25th August 2020, but neither document was before the judges who heard the respondents' application. The only annexure (DLM8) evidenced service of the notice of appeal in July 2019, predating any record of appeal. The Court therefore found the alleged filing and service unproven and declined to find any error in the earlier ruling.
Legal principles established
#- Sections 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules do not govern review of decisions of the Court of Appeal; the Court's power to review its own decisions is residual, under Sections 3A and 3(2) of the Appellate Jurisdiction Act, and may be exercised only in exceptional circumstances to avert injustice in the public interest
- The threshold for invoking the Court's residual jurisdiction to review its own decision is high and requires exceptional circumstances where the need to obviate injustice outweighs the principle of finality in litigation
Court orders
#- 1.The applicants' notice of motion dated 17th April 2023 seeking review of the ruling of 4th November 2022 is dismissed
- 2.The applicants shall pay the respondents' costs of the application
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
- Court of Appeal of Kenya (Kisumu) - prior ruling of the same court
- Ruling dated 4th November 2022 arising from High Court of Kenya at Kitale Succession Cause No. 12 of 2019
- Jurisdiction invoked
- Article 159(2) of the Constitution, Sections 3(2), 3A & 3B of the Appellate Jurisdiction Act, and Rules 5 & 47 of the Court of Appeal Rules
Relief refused
#Review, setting aside or variation of the ruling of 4th November 2022 deeming the notice of appeal as withdrawn
The applicants did not demonstrate exceptional circumstances warranting the exercise of the Court's residual jurisdiction; the material relied on referred only to service of the notice of appeal, not the record of appeal
Reopening of the hearing of the respondents' application dated 12th August 2021 to ascertain completeness of the Court of Appeal record
No record of appeal was shown to have been filed or served; granting the application would be a second bite of the cherry
Costs
The application is dismissed with costs - the applicants to pay the respondents' costs of the application
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.
Neither the appellate Jurisdiction Act nor the Court of Appeal Rules, gives powers to this Court to review its judgments/orders.
The threshold for the exercise of the Court’s residual jurisdiction is high, as it requires exceptional circumstances in which the Court is impelled to act to avert an injustice.
The applicants are simply seeking to have a second bite of the cherry and there is no provision for that.
Accordingly, the applicants’ motion for review fails. It is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa & 2 others v Musundi & another (Civil Application E121 of 2021) [2024] KECA 50 (KLR)", Case Analysis (2024). Notice of motion dated 17th April 2023 (Succession Cause No. 12 of 2019, High Court Kitale, referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/50/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.