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Court of AppealDismissedApplication dated 17th October 2024 (arising from Kwale ELC No. 144 of 2021)· [2025] KECA 774 (KLR)

Nms v Sg Kairu, Ki Laibuta & Gw Ngenye-macharia, Jja

Court of Appeal
9 May 2025
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let an appellant swap a court-ordered €61,000 deposit for other security, ruling that inability to pay is not a valid ground for review.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Laibuta and Ngenye-Macharia, JJA) on an application dated 17th October 2024 by Nereah Michael Said seeking review of the Court's orders of 27th September 2024, by which the Court had stayed execution of a judgment of the Environment and Land Court in Kwale ELC No. 144 of 2021 delivered on 12th April 2024, subject to conditions including the deposit of title deeds to two parcels and half of the proceeds of sale of a third parcel, in the sum of €61,000, with the trial court. The applicant sought substitution of the cash deposit with alternative security (a title deed for Kwale/Matuga/xxx and certificates of Treasury Bills) and clarification of the applicable exchange rate, arguing she had been unable to raise the sum. The respondent opposed the application as an abuse of process aimed at avoiding compliance with clear orders. The Court held that its jurisdiction to review its own decisions is residual and must be invoked with circumspection, citing Benjoh Amalgamated Limited v Kenya Commercial Bank Limited and Menginya Salim Murgani v Kenya Revenue Authority on the functus officio principle. Finding the orders of 27th September 2024 clear and unambiguous, and no mistake or error established, the Court dismissed the application with costs to the respondent. This ruling binds lower courts on the limits of the Court of Appeal's review jurisdiction.

Key legal issues

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01

Whether the Court of Appeal may review its own prior orders on the ground that the applicant cannot raise the ordered deposit

Holding

No. The jurisdiction to review the Court's own decisions is residual and exercised with circumspection; inability to raise the amount ordered, absent any mistake or error in the orders, does not justify review.

Reasoning

The Court reproduced the orders of 27th September 2024 and found them clear and unambiguous. Relying on Benjoh Amalgamated and Menginya Salim Murgani, it held that review jurisdiction exists only in cases of fraud, bias or other injustice, and that after judgment a court becomes functus officio and cannot revisit the matter on the merits save as provided by law. The applicant established no mistake or error in the orders; mere inability to liquidate securities to raise €61,000 is insufficient.

p. 2

Legal principles established

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  • The Court of Appeal's residual jurisdiction to review its own decisions must be invoked with circumspection, limited to cases of fraud, bias or other injustice, balancing the finality principle against the justice principle.
  • A court, after passing judgment, becomes functus officio and cannot revisit the judgment on the merits or exercise judicial power over the same matter save as provided by law.
  • Mere inability to comply with an order, without any mistake or error in the order, is not a basis for the Court to review its own orders.

Court orders

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  1. 1.The application dated 17th October 2024 is dismissed with costs to the respondent
On appeal from
Environment and Land Court
Kwale ELC No. 144 of 2021
Jurisdiction invoked
Residual jurisdiction of the Court of Appeal to review its own decisions, exercised with circumspection (as recognised in Benjoh Amalgamated Limited v Kenya Commercial Bank Limited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nms v Sg Kairu, Ki Laibuta & Gw Ngenye-macharia, Jja", Case Analysis (2025). Application dated 17th October 2024 (arising from Kwale ELC No. 144 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/774/eng@2025-05-09

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