Export Processing Authority v Lowdan Exporters (EPZ) Limited (Civil Appeal (Application) E113 of 2022) [2025] KECA 249 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot stay or review its own final judgment, so parties must act before judgment is delivered.
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 grant a stay of execution of its own judgment delivered on 26th July 2024 under Rule 5(2)(b) of the Court of Appeal Rules, 2022
- 2.Whether the Court can review and set aside its judgment delivered on 26th July 2024
Key legal issues
#Jurisdiction to stay execution of the Court's own final judgment under Rule 5(2)(b)
The Court has no such jurisdiction; Rule 5(2)(b) applies only while an appeal is pending, and after final judgment the Court is functus officio.
Rule 5(2)(b) confers discretionary power to preserve the subject matter of a pending appeal. Once final orders issue, the Court's residual jurisdiction under Article 163(4)(b) is restricted to certification of appeals to the Supreme Court. The applicant produced no evidence of an intended Supreme Court appeal, so no basis existed to stay the judgment.
Whether the judgment can be reviewed and set aside on the ground that the applicant was not afforded a hearing
No review lies; no exceptional circumstances were demonstrated and the applicant was represented by an advocate throughout who failed to act but whose conduct the applicant condoned.
Review jurisdiction is residual and exercised cautiously only in exceptional circumstances to avoid injustice and promote public confidence. It was uncontested that the applicant's advocates were served and attended but did not participate. The applicant blamed its erstwhile advocates but condoned the mistakes from the ELC stage and did not file a notice of change of advocates as Rule 23 requires. Mistakes of counsel will not be visited on a client only where the client shows the non-compliance was the advocate's fault, which was not demonstrated.
Legal principles established
#- Once the Court of Appeal has delivered final judgment it is functus officio and lacks jurisdiction under Rule 5(2)(b) to stay execution of its own judgment absent evidence of an intended appeal to the Supreme Court
- The Court of Appeal's residual jurisdiction to review or reopen its own decided matter may be exercised only in exceptional circumstances, such as fraud, bias or other injustice, and with circumspection
- The maxim that mistakes of counsel should not be visited on a client has a corollary: a party must demonstrate that non-compliance with procedural rules was due to the advocate's fault and must comply with Rule 23 on change of advocates
Court orders
#- 1.The application dated August 26, 2024 is dismissed with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal (judgment under review)
- Not stated in judgment
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (post-judgment jurisdiction restricted to certification); Court of Appeal Rules, 2022, Rules 5(2)(b), 23 and 37
Relief refused
#Stay of execution of the judgment delivered on 26th July 2024
Rule 5(2)(b) applies only to pending appeals; once final judgment is delivered the Court is functus officio and has no jurisdiction to stay its own judgment
Review and setting aside of the judgment of 26th July 2024 and remittal of the suit to the Environment and Land Court
No extraordinary or exceptional circumstances were shown; the applicant was represented by an advocate throughout, condoned the advocate's conduct, and failed to file a notice of change of advocates under Rule 23
Costs
Application dismissed with costs to the appellant
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.
We accordingly find no merit in the application dated August 26, 2024, which is hereby dismissed with costs to the appellant.
once this Court has pronounced the final judgment, it is functus officio and must down its tools.
this is jurisdiction that should be invoked with circumspection, and only in cases whose decisions are not appealable (to the Supreme Court).
We therefore find that there are no extraordinary circumstances that would warrant this Court to review its judgment.
there is a corollary to the hallowed maxim that mistakes of counsel should not be visited on a client, which is that legal business must be conducted efficiently, and in this particular case with finality.
Issues in the judgment
#The judgment gives two different dates for the appeal judgment under review - 26th July 2024 and 26th July 2023
The judgment states a hearing notice was served on 21st February 2021 fixing the appeal for hearing on 13th March 2023, dates that appear internally inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Export Processing Authority v Lowdan Exporters (EPZ) Limited (Civil Appeal (Application) E113 of 2022) [2025] KECA 249 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/249/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.