Mosigisi (The then District Commissioner, Rongai District) v Ole Kimeiwa & 8 others (Civil Appeal E030 of 2020) [2026] KECA 577 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a judge delivers a final judgment, they cannot reopen it—you must appeal, not ask the same judge to change their mind.
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 appeal should be allowed and the ruling of 12th November 2020 set aside
- 2.Whether the issue of sufficient reason to justify review of the judgment dated 16th January 2018 flows from the pleadings
- 3.Whether the learned Judge, having determined in the judgment that the applicant was properly sued in his personal capacity, was functus officio
Key legal issues
#Whether the appellant could, on appeal, urge the issue of sufficient reason to justify review of the judgment
The issue was rejected because the application before the trial court was not a review application; it was not brought under Section 80 of the Civil Procedure Act or Order 45 of the Civil Procedure Rules, and new issues cannot be raised on appeal.
The Court read the application and found it was anchored on Article 50 of the Constitution, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 9 Rule 9(a) of the Civil Procedure Rules, seeking a declaration on who should satisfy the decree and stay of execution, not review. Appellate jurisdiction is confined to issues presented in the lower court; raising new matters constitutes unfair surprise, and no relief can be granted on a case not founded on the pleadings.
Whether the trial judge was functus officio after determining that the applicant was properly sued in his personal capacity
Yes. Having pronounced itself conclusively on the propriety of suing the applicant personally, the trial court was functus officio and could not be invited to sit on appeal over its own decision.
A court that has given a final decision on the merits is deprived of all judicial functions over the issues it determined. For functus officio to arise there must be a valid, final and conclusive judgment, decree or order, upon which res judicata comes into existence. The trial judge had made findings of law and fact on the applicant's personal liability; the proper path was an appeal to the Court of Appeal, not a stealth attempt to have the same judge change his mind.
Whether the ruling dismissing the appellant's application should be overturned
The Court found no basis to fault the learned Judge and dismissed the appeal.
The trial judge had firmly rejected the invitation to re-determine issues he had conclusively decided, correctly holding that review jurisdiction is radically circumscribed and that litigation must come to an end. The appellant's grievance lay in an appeal, which is what was now before the Court of Appeal, and the appeal itself lacked merit.
Legal principles established
#- A court that has delivered a final, valid and determinative decision on the merits becomes functus officio as to the issues decided and has no jurisdiction to recall its decision; the remedy of an aggrieved party is an appeal, not review or re-litigation in the same court.
- A party cannot introduce new issues, arguments or evidence on appeal that were not raised, canvassed or pleaded before the trial court.
- A public officer who acts outside the remit of his office, maliciously and to the injury of citizens, loses the personal protection and immunity of his public office and may be sued personally.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st to 6th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Constitutional Petition No. 38 of 2014
- Jurisdiction invoked
- First appeal / appellate jurisdiction of the Court of Appeal against a ruling of the High Court (specific constitutional or statutory provision not stated in the judgment)
Relief refused
#Setting aside of the ruling delivered on 12th November 2020 and the consequential orders
The appeal was devoid of merit; the trial judge correctly declined to re-determine issues he had conclusively decided, being functus officio
The appellant's submission that the application before the trial court was a review application seeking sufficient reason to review the judgment
The application was not brought under the review provisions and did not seek review; a litigant cannot urge issues on appeal that were not raised or pleaded before the trial court
Costs
Appeal dismissed with costs to the 1st to 6th respondents
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.
A court which, after a trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law.
It is a well-settled principle of law that a litigant cannot in their submissions before a Court of Appeal, urge issues that were not raised, canvassed, or pleaded before the trial court.
The path divined by the Constitution and statutory law is vide an appeal to the Court of Appeal. This is the reason the review jurisdiction of the Court is radically circumscribed.
Accordingly, it is our finding that this appeal is devoid of merit. We dismiss it with costs to the 1st to 6th respondents.
Issues in the judgment
#The judgment inconsistently numbers the respondents, referring variously to the '8th and 9th respondents', the '3rd and 4th respondent (now the 7th and 8th respondents)', and the '7th and 8th respondents'; the coram and case number of the appeal are also not stated.
The judgment contains a typographical duplication in numbering the excerpts from the trial court ruling ('11.' appears twice) and a dated inconsistency between the judgment date of 16th February 2018 and references to a judgment dated 16th January 2018.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mosigisi (The then District Commissioner, Rongai District) v Ole Kimeiwa & 8 others (Civil Appeal E030 of 2020) [2026] KECA 577 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/577/eng@2026-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.