Kenya Shell Limited v James G. K. Njoroge [2001] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it won't reopen decisions already made: one bench cannot review another bench's ruling in the same case.
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 superior court has power under section 7 of the Appellate Jurisdiction Act to validate a notice of appeal filed out of time without leave.
- 2.Whether, in the absence of a valid notice of appeal, the superior court could grant a stay of execution under Order 41 rule 4 of the Civil Procedure Rules.
- 3.Whether the validity or otherwise of the notice of appeal was res judicata, having been finally dealt with in Civil Appeal No. 223 of 1998.
- 4.Whether the learned single Judge erred in principle in granting an extension of time within which to lodge the record of appeal.
Key legal issues
#Whether one bench of the Court of Appeal can sit on appeal against, or reopen, the decision of another bench of the same Court.
No. The Court of Appeal is the final court; its decision in Civil Appeal No. 223 of 1998 binds the parties, and whether that bench was right or wrong was neither here nor there. Any fresh scrutiny of the decision can occur only in later decisions, not in the same matter.
The respondent's reference sought to relitigate the validity of the fresh notice of appeal, an issue the Court held had been finally dealt with in Civil Appeal No. 223 of 1998. The Court treated the reference as an impermissible collateral attack on a decision of a co-ordinate bench, condemning it as an attempt to reopen through the back door a matter already adjudicated upon. Finality and intra-court comity, not the correctness of the earlier decision, governed the outcome.
Whether a single Judge of the Court of Appeal had jurisdiction to determine the validity of the fresh notice of appeal.
No. The validity of the notice was not an issue in the application before the single Judge, and even if it had been raised, a single Judge lacked jurisdiction to judicially determine it; the arguments on validity were superfluous and irrelevant.
The application before the single Judge was for extension of time to lodge a record of appeal under rule 4 of the Court of Appeal Rules. The validity of the fresh notice of appeal had already been conclusively settled by the full Court in Civil Appeal No. 223 of 1998. The single Judge's remark that the earlier decision was correct and distinguishable could not confer jurisdiction he did not possess, and his failure to address the validity arguments was not an error of principle.
The effect of striking out a notice of appeal, and the jurisdiction to extend time for a fresh notice and to grant a stay.
A struck-out notice of appeal is as if never lodged. The superior court has jurisdiction to extend time for lodging a fresh notice of appeal, and a properly filed notice of appeal gives the superior court jurisdiction to grant a stay under Order 41 rule 4 of the Civil Procedure Rules.
The Court adopted the holding of Kwach, Tunoi and Lakha JJ.A. in Civil Appeal No. 223 of 1998 and declared it binding on the parties. Section 7 of the Appellate Jurisdiction Act does not specifically cater for filing a record of appeal out of time, but once a notice of appeal is filed the rules of the Court come into play, grounding the High Court's jurisdiction over stay of execution pending the intended appeal.
Whether the respondent discharged the burden of showing that the single Judge erred in principle in extending time to lodge the record of appeal.
No. The jurisdiction under rule 4 being discretionary, the respondent had the duty of showing error in principle or otherwise; having failed to discharge it, the Court had no basis for faulting the single Judge.
A reference is not a rehearing; the aggrieved party must demonstrate that the single Judge misdirected himself in the exercise of discretion. The complaints advanced, namely the failure to consider the validity of the notice of appeal and the section 7 arguments, were misconceived, since those issues fell outside the single Judge's jurisdiction, and Mulwa J had never dealt with enlargement of time to lodge a record of appeal, so what he decided was not properly before the single Judge.
Whether the decisions in Muriithi v Muriithi and Gabriel Kigi v Mwaura applied to the facts.
No. Those unreported decisions, and a line of similar cases on extending time to lodge a notice of appeal under section 7 of the Appellate Jurisdiction Act and old rule 41, are totally inapplicable to the facts of this matter.
Those authorities dealt with the jurisdiction of the Court to extend time to lodge a notice of appeal despite section 7 of the Appellate Jurisdiction Act and rule 41 of the Rules before amendment. Here, by contrast, Mulwa J had extended time for filing a fresh notice of appeal, not a record of appeal, and what he did would not properly be the subject of submissions before the single Judge; the cited line of cases therefore had no application.
Legal principles established
#- A decision of one bench of the Court of Appeal binds the parties and cannot be revisited by another bench of the same Court in the same matter; fresh scrutiny is only possible in later decisions, not in the matter already decided.
- A single Judge of the Court of Appeal lacks jurisdiction to judicially determine the validity of a notice of appeal; that determination is for the full Court.
- On a reference against the exercise of the Court's discretionary jurisdiction under rule 4 of the Court of Appeal Rules, the applicant for the reference bears the duty of showing that the single Judge erred in principle or otherwise.
- A notice of appeal struck out by the Court is as if never lodged; the superior court nonetheless retains jurisdiction to extend time for lodging a fresh notice of appeal.
- A properly filed notice of appeal confers jurisdiction on the superior court to grant a stay of execution under Order 41 rule 4 of the Civil Procedure Rules.
- Section 7 of the Appellate Jurisdiction Act does not specifically cater for filing a record of appeal out of time, as distinct from a notice of appeal.
Court orders
#- 1.The reference is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (ruling of a single Judge)
- Civil Application No. Nai. 292 of 1998
- Jurisdiction invoked
- Reference to the full Court against a ruling of a single Judge under the Court of Appeal Rules; the underlying motion was brought under rule 4 of the Court of Appeal Rules (extension of time to lodge a record of appeal), engaging section 7 of the Appellate Jurisdiction Act, Cap 9, and Order 41 rule 4 of the Civil Procedure Rules.
Relief refused
#A finding that the superior court lacked jurisdiction under section 7 of the Appellate Jurisdiction Act to validate a notice of appeal filed out of time without leave
The issue had been finally determined in Civil Appeal No. 223 of 1998, whose decision binds the parties; one bench of the Court cannot sit on appeal against another bench of the same Court, and the reference was an attempt to reopen the matter.
A declaration that no stay of execution could be granted under Order 41 rule 4 of the Civil Procedure Rules in the absence of a valid notice of appeal
The Court of Appeal had already held in Civil Appeal No. 223 of 1998 that a properly filed notice of appeal confers stay jurisdiction on the superior court; the validity of the fresh notice was not an issue before the single Judge and, in any event, a single Judge lacked jurisdiction to determine it.
Setting aside the single Judge's order extending the time for lodging the record of appeal
The jurisdiction under rule 4 of the Rules being discretionary, the respondent had the duty of showing that the single Judge erred in principle or otherwise and did not discharge that duty.
Costs
The reference was dismissed with costs.
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.
Accordingly, we dismiss the reference with costs.
This is the final Court. The decision it came to in that appeal binds the parties and one bench of this Court cannot sit on appeal against another bench of the same Court.
It is merely an attempt to reopen through the back door a matter which has already been adjudicated upon.
When a notice of appeal is struck out by this Court, it is no more. It is as if there was no notice of appeal lodged at all.
We hold that the superior court had the jurisdiction to extend time for lodging a fresh notice of appeal.
A notice of appeal, when properly filed, gives the superior court jurisdiction to grant an order of stay under Order 41 rule 4 of the Civil Procedure Rules.
Even if it was made an issue, as a single Judge, he lacked the jurisdiction to judicially determine the issue.
The jurisdiction of the Court under rule 4 of the Rules being discretionary, the respondent had the duty of showing that the learned single Judge erred in principle or otherwise.
Issues in the judgment
#Internal date inconsistency: the fresh notice of appeal is earlier described as filed on 8th July 1998 (the same day as the Chamber Summons dated 8th July, 1998), but the ruling later refers to a notice of appeal filed on 7th October, 1998.
Internal date inconsistency: the narrative states the struck-out notice erroneously gave the decision date as 8th October, 1997 (instead of 7th October, 1997), but the quoted passage from Civil Appeal No. 223 of 1998 refers to a purported ruling of 8th October, 1998.
The unreported case is spelled both 'Muriithi v Murithi & Another' on first mention and 'Muriithi v Muriithi & Another' in the later (supra) reference.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shell Limited v James G. K. Njoroge [2001] KECA 33 (KLR)", Case Analysis (2001). Civil Application No. Nai. 292 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/33/eng@2001-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.