Peter Munjuga Gathuru v Harun Osoro Nyamboki & 1 other
The bottom line
#Kenya's Court of Appeal refused to reopen its 2015 land ruling, confirming that courts cannot revisit judgments on the merits—but the protective caveat stays until compensation is paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court could exercise its residual jurisdiction to review its 2015 judgment to compel Nesco to transfer the property
No. The application was in substance an attempt to revisit the judgment on its merits and have the Court sit on appeal over its own decision, which the functus officio principle forbids save as provided by law.
The Court found that the transfer to Nesco occurred on 11th October 2001, before Gathuru filed his appeal in 2004, and a search would have revealed it. The 2015 judgment had expressly contemplated a possible third-party transfer and provided an alternative remedy of compensation at market value. Granting review would amount to sitting on appeal over the Court's own decision, contrary to the functus officio principle and the requirement of circumspection in Benjoh Amalgamated.
Whether the caveat registered pursuant to the 2015 judgment should be removed
No. The caveat was an ancillary order to remain until completion and satisfaction of the judgment, and Gathuru has not yet been compensated with the value of the property.
The 2015 judgment ordered the caveat to remain 'till completion and satisfaction of our order'. Nyamboki conceded Gathuru has not been compensated. Removing the caveat now would be premature because once compensation is paid there would be no further basis for the caveat. The application by Nesco and Nyamboki accordingly failed along with Gathuru's.
Legal principles established
#- A court of final resort has residual jurisdiction to review its own decisions in cases of fraud, bias or other injustice, but the jurisdiction must be invoked with circumspection, balancing the finality principle against the justice principle
- After delivering judgment, a court becomes functus officio and cannot revisit the judgment on its merits save as provided by law
Court orders
#- 1.Both applications (dated 31st May 2022 and 21st November 2023) are dismissed
- 2.Each party will bear its own costs of the applications
- On appeal from
- High Court of Kenya
- HCCC No. 2874 of 1987
- Jurisdiction invoked
- Residual inherent jurisdiction of the Court of Appeal to review its own decisions, and Rule 37 (previously 35) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Munjuga Gathuru v Harun Osoro Nyamboki & 1 other", Case Analysis (2024). Nairobi Civil Application No. E198 of 2022 and Nairobi Civil Application No. E550 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1629/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.