Nms v Sg Kairu, Ki Laibuta & Gw Ngenye-macharia, Jja
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Court of Appeal may review its own prior orders on the ground that the applicant cannot raise the ordered deposit
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.