Charles Edward Njoroge v Grace Wambui Wamanda [2001] KECA 135 (KLR)

The Court reaffirmed, as a principle 'held time and again', that its jurisdiction is exhausted once judgment is pronounced: a delivered judgment cannot be varied or set aside even if it could be shown that the Court may have erred. The applicant's motion invited the Court to do precisely what it has no power to do - revisit its own judgment of 23rd February 2001. Because the Court lacks any such power, the motion was an abuse of the process of court and was dismissed, with costs assessed at Shs.4,000/=.

The applicant's ground was that fresh evidence unearthed showed that the land, the subject matter of the appeal, were shares in a public company as opposed to a private company. The Court noted that such evidence was not before the superior court and was not before it either. As a court of record, the Court decides only on the record placed before it; after judgment it cannot look at fresh evidence, even where that evidence could not have been available at the earlier stage. The fresh-evidence ground therefore could not avail the applicant.

Having held that it has no power to vary, set aside or correct a pronounced judgment, whether for error or on fresh evidence, the Court characterised the application inviting it to do so as an abuse of the process of court. That characterisation was the basis for the dismissal and for the costs order assessing the respondent's costs at Shs.4,000/=. The statement confirms that motions of this kind are not merely incompetent but an abuse of process, which advocates should weigh before filing applications to reopen delivered appellate judgments.