Dim Properties Limited v Lamu Breeze Investments Limited & 6 others
The bottom line
#The Court of Appeal refused to reopen its own final judgment, confirming that losing parties must appeal to the Supreme Court rather than seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction to review its own judgment and on what terms
The Court has only residual, exceptional review jurisdiction, exercised sparingly and not where the grievance is appealable to the Supreme Court.
The Court traced its jurisdiction to Article 164(3) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act, holding it cannot be enlarged beyond what is conferred. Relying on Benjoh Amalgamated, Niels Bruel, Cape Holdings and Nguruman, it held the residual review jurisdiction is exceptional, exercised cautiously and only in non-appealable cases. The applicant's complaint about the bona fide purchaser finding was a matter for Supreme Court appeal.
Whether functus officio bars the review application
Yes; the appeal was heard and determined with finality on 11th October 2024, and only minor clerical or arithmetic mistakes under Section 99 of the Civil Procedure Act are correctable.
The Court applied the functus officio doctrine as approved by the Supreme Court in Raila Odinga v IEBC, quoting Pretorius: a decision-maker may exercise adjudicative powers only once in relation to the same matter, and such a decision cannot be reviewed or varied by the decision-maker. The Court is barred from correcting substantive decisions; an aggrieved party's remedy is an appeal under Article 163(4) of the Constitution.
Whether the alleged new evidence of payment of Kshs.13,500,000 constitutes an error apparent on the face of the record warranting review
No; the sufficiency of evidence on the purchase price was one of the issues determined in the impugned judgment and is a matter for Supreme Court appeal, not review.
The applicant's complaint was that the finding that it was not a bona fide purchaser rested on absence of evidence of payment. The Court held that because this was one of the issues that fell for determination in the impugned judgment, it is a matter subject to appeal in the Supreme Court, and the Court cannot sit on appeal on its own decision.
Legal principles established
#- The Court of Appeal's residual jurisdiction to review its own decisions is exceptional, to be exercised cautiously, with circumspection, in the rarest of cases and on a case-by-case basis, and only where decisions are not appealable to the Supreme Court.
- Once the Court of Appeal pronounces itself on a matter, the functus officio doctrine precludes it from re-opening it, save for minor clerical or arithmetic mistakes under Section 99 of the Civil Procedure Act.
- Allegations that the Court misapprehended or misapplied the law are grounds for appeal, not for invocation of the residual review jurisdiction.
Court orders
#- 1.The applicant's Motion dated 4th November 2024 is dismissed with costs to the 1st respondent
- On appeal from
- Environment and Land Court of Kenya at Malindi
- ELC No. 224 of 2014
- Jurisdiction invoked
- Article 164(1) and 164(3) of the Constitution; Section 3(1) of the Appellate Jurisdiction Act, Cap 9; Rule 59(2) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dim Properties Limited v Lamu Breeze Investments Limited & 6 others", Case Analysis (2025). Civil Appeal (Application) E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2241/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.