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Court of AppealPartially AllowedCivil Appeal (memorandum of appeal dated 24.8.23)

Mohamed v Adan & 3 others (Civil Appeal E680 of 2023) [2026] KECA 527 (KLR)

Court of Appeal of Kenya
13 March 2026
12,398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled a judge cannot overturn another judge's orders, striking out a second attempt to redo a concluded Kshs.320 million share valuation.

What this practically means

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Executive summary

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The Court of Appeal allowed the appeal by Hussein Unshur Mohamed against the ruling of Njoki Mwangi, J. dated 25.4.23, which had set aside the appointment of RSM (East Africa) Consulting Limited as valuer, set aside RSM's Business Valuation Report, and directed a fresh valuation of Bluebird Aviation Limited to determine the value of the 1st respondent Yusuf Abdi Adan's 25% shareholding. The dispute arose from long-standing shareholder wrangles in which the 1st respondent's application for leave to bring a derivative suit was dismissed by Mabeya, J. on 29.7.21; on review, the judge substituted a buy-out order, RSM was jointly appointed and valued the shares at Kshs.320,912,500, and on 3.6.22 Mabeya, J. adopted the report and ordered the transfer, which was perfected by 29.7.22. The Court framed three jurisdictional issues. First, it held that a judge of co-ordinate jurisdiction has no power to sit on appeal over, modify or reverse the orders of a fellow judge; Article 165(6) supervisory powers do not extend to fellow judges, and such orders are null and void ab initio. Secondly, the 1st respondent's application of 15.9.22 was a second review expressly barred by Order 45 Rule 6 of the Civil Procedure Rules and was res judicata, its grounds having been fully agitated and rejected before Mabeya, J. Thirdly, the High Court was functus officio, the buy-out orders having been perfected and fully implemented. The Court set aside the ruling of 25.4.23, substituted an order striking out the 1st respondent's motion with costs, and awarded the costs of the appeal to the 1st respondent's opponents, holding the 1st respondent liable for the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge had jurisdiction to sit on appeal, modify and overturn the previous decision of Mabeya, J.
  2. 2.Whether the application dated 15.9.22 was a second review and therefore res judicata
  3. 3.Whether the High Court was functus officio final judgment having been perfected and fully executed

Key legal issues

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01

Whether a judge of concurrent jurisdiction may overturn the decision of a coordinate judge

Holding

No. Only appellate or supervisory jurisdiction empowers a judge to reverse orders; a High Court judge's Article 165(6) supervisory powers do not extend to fellow judges, and purported 'corrective' orders are a nullity.

Reasoning

The court found Njoki Mwangi, J. had made diametrically opposite findings to Mabeya, J. on the same issues - the signed status of the valuation report, the validity of the consent appointing RSM, access to audited accounts, and alleged influence over the valuer. Judges never second-guess their peers; doing so is impermissible overreach and judicial adventurism attracting appellate rebuke, rendering the orders null and void ab initio.

p. 16
02

Whether the application dated 15.9.22 was a prohibited second review and res judicata

Holding

Yes. The application was a second review barred by Order 45 Rule 6 and its grounds - the unsigned/unsealed report, alleged influence, denial of access to accounts - had been fully agitated and determined by Mabeya, J., making them res judicata.

Reasoning

Mabeya, J. had previously made orders on review on 1.10.21 and had considered and rejected the very objections now raised when adopting the RSM report on 3.6.22. The distinction between the two applications was 'a mere phantom and a chimera'. Relitigating concluded issues with cosmetic changes is what res judicata exists to prevent; the application was in every sense an appeal in disguise.

p. 20
03

Whether the High Court was functus officio

Holding

Yes. Mabeya, J.'s orders of 3.6.22 had been perfected and fully implemented by 29.7.22 - the purchase price deposited, shares transferred - leaving nothing for the court to adjudicate.

Reasoning

Once a court renders a decision its role is spent. Having found the matters res judicata, the court had no jurisdiction. Section 63(e) CPA did not donate jurisdiction; neither Telkom Kenya nor Bellevue was authority for assuming a non-existent jurisdiction to revisit exhaustively determined matters. Jurisdiction is everything and cannot be conferred by consent or waiver.

p. 21

Legal principles established

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  • A High Court judge has no jurisdiction to sit on appeal over, modify, reverse or 'correct' the orders of a judge of co-ordinate jurisdiction; supervisory powers under Article 165(6) do not extend to fellow judges, and any such orders are null and void ab initio.
  • Order 45 Rule 6 of the Civil Procedure Rules expressly bars entertaining an application to review an order made on a review; a second review application is incompetent.
  • Res judicata bars re-agitation of matters directly and substantially in issue and finally decided in a former suit between the same parties, including matters which might and ought to have been raised earlier (Explanation 4 to section 7 of the Civil Procedure Act).
  • Once a court has rendered a final decision and its orders have been perfected and fully implemented, the court is functus officio and has no competence to reopen the matter.
  • Jurisdiction cannot be conferred by consent, acquiescence or waiver; participation in proceedings before a court lacking jurisdiction does not cure the defect.

Court orders

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  1. 1.The ruling and order of Njoki Mwangi, J. dated 25.4.23 is set aside
  2. 2.An order is substituted that the 1st respondent's motion dated 15.9.22 be struck out with costs
  3. 3.The 1st respondent shall bear the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya, Commercial and Tax Division at Nairobi
Civil Suit No. 100 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court (Article 164 of the Constitution); the appeal challenged the ruling of Njoki Mwangi, J. dated 25.4.23

Relief refused

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The 1st respondent's application dated 15.9.22 seeking setting aside of the RSM appointment letter and valuation report and a fresh valuation

The application was a second review barred by Order 45 Rule 6, was res judicata, and the court was functus officio; it was struck out

p. 22

Costs

The 1st respondent shall bear the costs of this appeal; the impugned motion was struck out with costs; (the ruling below had ordered each party to bear their own costs of that application, which order is now set aside)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of our consideration of this appeal is that it is for allowing. The ruling and order of Njoki Mwangi, J. dated 25.4.23 is accordingly set aside. We substitute therefor an order that the 1st respondent's motion dated 15.9.22 be struck out with costs.
p. 22Final orders - appeal allowed, ruling set aside, motion struck out
To alter, modify question or reverse, expressly or by implication, the orders of a judge of co- ordinate jurisdiction and equal status is a strict no-go zone, and a judicial anathema.
p. 16Prohibition on sitting in judgment over a coordinate judge
It is the Law's way of saying. "You had your day in court to ask all your questions and say your all on that subject, and you got your answer. Now live with that answer and forever keep your peace."
p. 18Rationale of res judicata
If a litigant were allowed to go on forever re-litigating the same issue with the same opponent before Courts of competent jurisdiction, merely because he gives his case some cosmetic face-lift on every occasion he comes to a Court, then I do not see what use the doctrine of res judicata plays.
p. 21Re-litigation with cosmetic changes (quoting Kuloba, J.)
A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.
p. 20Finality of litigation
jurisdiction cannot be conferred by consent, acquisition or waiver
p. 21Jurisdiction - Lillian S principle

Issues in the judgment

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minor

The ruling of 3.6.22 is quoted as ordering payment of 'Kshs.320,012,500' while every other passage of the judgment records the sum as Kshs.320,912,500, an apparent typographical discrepancy within the judgment.

minor

The judgment inconsistently identifies the transferee of the 1st respondent's shares, stating in one place transfer to the '2nd respondent' where the surrounding narrative and submissions indicate the 3rd respondent.

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, "Mohamed v Adan & 3 others (Civil Appeal E680 of 2023) [2026] KECA 527 (KLR)", Case Analysis (2026). Civil Appeal (memorandum of appeal dated 24.8.23). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/527/eng@2026-03-13

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