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Court of AppealDismissedCivil Application No. E420 of 2023· [2024] KECA 335 (KLR)

Raphael Joseph Karuri v Housing Finance of Kenya & 2 others

Court of Appeal
28 March 2024
1,066 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a stalled appeal because you cannot re-ask a judge for the same favour after being turned down once.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi delivered by Kiage, JA on 28th March 2024. The applicant, Raphael Joseph Karuri, moved under a notice dated 23rd November 2023 for extension of time to regularize a record of appeal filed on 14th June 2023 against a High Court judgment (C. Kariuki, J.) of 2nd December 2015. The applicant explained that a second notice of appeal was erroneously placed in his file; a supplementary record containing the correct notice was filed out of time, and an application to admit it (Civil Application No. E289 of 2021) was dismissed by Mativo, JA on 28th October 2022 for inordinate, unexplained delay evidencing indolence. He then withdrew Civil Appeal No. E253 of 2021 and filed the present record without leave. The 2nd and 3rd respondents opposed, contending res judicata, inordinate and deliberate delay, and prejudice. Kiage, JA held the application was an echo and replica of the earlier dismissed application and therefore barred by section 7 of the Civil Procedure Act, the bar extending to applications and not merely suits. The court endorsed Moyale Liner Bus Servcies v Gachu Ibrahim on functus officio and finality, and declined to revisit the issue of delay already determined, describing the delay as long, inordinate, unexplained and inexcusable. The motion was dismissed with costs. The decision is an interlocutory single-judge ruling; no appeal against the High Court judgment was before the court, and the prior High Court decision was not disturbed.

Key legal issues

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01

Whether the motion is res judicata following the earlier dismissal of a similar application

Holding

Yes. The motion is an echo and replica of Civil Application No. E289 of 2021, dismissed by Mativo, JA on 28th October 2022, and its re-litigation is barred by section 7 of the Civil Procedure Act and the principle of functus officio.

Reasoning

The court found the present application, though cast as seeking a different relief, sought essentially the same prayers as the dismissed application. The public interest in finality of litigation and the statutory exclusionary rule in section 7 of the Civil Procedure Act bar re-litigation. The bar covers applications, not only suits, and re-opening would amount to abuse of process.

p. 2
02

Whether the delay warrants the exercise of discretion to extend time

Holding

No. The delay was long, inordinate and unexplained, found so already by Mativo, JA, and the intervening period only compounded it.

Reasoning

The applicant took about six years to attempt to correct the error, evidencing indolence, and there was no reasonable explanation for the delay. The subsequent filing of a record of appeal without leave eight months after the dismissal of the prior application, and the filing of this motion five months later, compounded rather than ameliorated the delay. The application would fail on well-settled principles even absent the res judicata bar.

p. 3

Legal principles established

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  • The res judicata bar under section 7 of the Civil Procedure Act extends to interlocutory applications: once a matter has been determined in an application, it cannot be relitigated in a subsequent application seeking essentially the same prayers.
  • A judge of the Court of Appeal who has already pronounced himself on the issue of delay cannot revisit the same issue in a subsequent application on the same subject matter, being functus officio.

Court orders

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  1. 1.The motion dated 23rd November 2023 is dismissed with costs
On appeal from
High Court at Nairobi
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), exercised by a single judge of the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Raphael Joseph Karuri v Housing Finance of Kenya & 2 others", Case Analysis (2024). Civil Application No. E420 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/335/eng@2024-03-28

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