Rafiki Enterprises Limited v Kingsway Tyres & Automart Limited [1996] KECA 199 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot recall or undo a judgment it has already delivered, and dismissed the challenge as an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's inherent powers
The inherent power conferred by Rule 1(3) of the Court of Appeal Rules relates only to the hearing of appeals from the High Court; the Court has no original jurisdiction and cannot make orders such as recalling a delivered judgment
Section 64(1) of the Constitution creates the Court of Appeal as a court with jurisdiction and powers only in relation to appeals from the High Court, conferred by law. Section 3(2) of the Appellate Jurisdiction Act vests High Court powers in the Court only for purposes incidental to hearing and determining appeals. Any reading conferring original jurisdiction would conflict with the Constitution, which would prevail. The Civil Procedure Act, defining 'court' as the High Court or a subordinate court, does not apply to the Court of Appeal.
Constitutional interpretation questions arising in the Court of Appeal
The Court of Appeal must itself determine constitutional interpretation questions arising in a matter before it; there is no provision requiring referral to the High Court as there is for subordinate courts
Section 67(1) of the Constitution requires subordinate courts to refer constitutional questions to the High Court, but there is no equivalent provision for the Court of Appeal. It would be impractical and ridiculous for the Court to refer a challenge to its own jurisdiction to the High Court. Every court has a duty to determine whether it has jurisdiction, so the Court must decide such issues as part of its appellate jurisdiction.
Legality of acting appointment of a Judge of Appeal when eight substantive Judges exist
Section 61(5) of the Constitution permits acting appointments where the Chief Justice advises the President that the state of business so requires, even with eight substantive Judges of Appeal; the applicant's contrary construction would render the fourth head of section 61(5) meaningless
The first three circumstances in section 61(5) concern vacancies; the fourth covers the state of business. If the number of Judges could never exceed eight, the fourth head would be unnecessary. Gazette Notice Number 4475 of 1996, though it should perhaps have cited sections 61(2) and (5) and 64(3), was substantively valid. Section 7(2) of the Judicature Act, if read as an absolute bar, would conflict with the Constitution and be invalid.
Abuse of process in raising the bench-composition objection only after losing
The application was reckless, impertinent, not brought in good faith, and an abuse of the process of the court, having been brought only to avoid obligations under the judgment
The applicant was represented by counsel at the hearing of the appeal, saw Bosire, Ag. J.A. sitting, and raised no objection to his qualification; the objection surfaced only after the appeal was lost. The application also caused grave embarrassment to the Judge personally and to the Judicial Service Commission. The Court therefore dismissed the application and indicated it would consider personal costs against the applicant's advocate.
Legal principles established
#- The Court of Appeal's jurisdiction and inherent powers under Rule 1(3) of its Rules are confined to the hearing and determination of appeals from the High Court and cannot be exercised as original jurisdiction
- The Court of Appeal has no power to recall and nullify a judgment it has already delivered
- Every court has a duty to determine whether it has jurisdiction, and where a question touching the interpretation of the Constitution arises in the Court of Appeal, the Court must itself determine it as part of its appellate function
- A right of appeal must be expressly given by law and cannot be implied or inferred
- The provisions of the Civil Procedure Act do not apply to the Court of Appeal, which has its own rules of procedure
- Acting Judges of Appeal may lawfully be appointed under section 61(5) of the Constitution on the ground that the state of business so requires, even where there are already eight substantive Judges of Appeal; a conflicting statutory cap would be invalid
Court orders
#- 1.The application is dismissed
- 2.Mr. Mwenesi, the applicant's advocate, is to be called upon at a later stage to show cause why he should not personally pay the costs of the application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 220 of 1995
- Jurisdiction invoked
- Sections 100, 63(e) and 34 of the Civil Procedure Act, section 3(2) and (3) of the Appellate Jurisdiction Act, Rules 1(3) and 42 of the Court of Appeal Rules, Order 50 Rules (1) and (2) of the Civil Procedure Rules and section 84(1) of the Constitution of Kenya (as invoked by the applicant); the Court held its own jurisdiction limited to appeals from the High Court under section 64(1) of the Constitution and section 3 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- APA Homes (K) Limited v Omar & another (Civil Appeal (Application) E040 of 2024) [2025] KECA 1035 (KLR)[2025] KECA 1035 (KLR)5 Jun 2025applied
- East African Cargo Logistics v Eden Transport and Logistics Limited (Civil Appeal E098 of 2021) [2024] KECA 413 (KLR)[2024] KECA 413 (KLR)26 Apr 2024followed
Cite this brief
#Cite this brief
Caselaw, "Rafiki Enterprises Limited v Kingsway Tyres & Automart Limited [1996] KECA 199 (KLR)", Case Analysis (1996). Civil Application No. Nai. 375 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/199/eng@1996-12-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.