JASBIR SINGH RAI & 3 OTHERS v TARLOCHAN SINGH RAI & 4 OTHERS [2007] KECA 132 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it has no power to reopen a concluded appeal, even where a party alleges judicial bias, and struck out the application with costs.
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 Court of Appeal has jurisdiction, statutory or inherent, to reopen, re-hear, recall or set aside its own judgment in a concluded appeal
- 2.Whether the notice of motion dated 12th November 2003 is competent and sustainable in law
- 3.Whether a judge against whom allegations of bias are made after judgment may file an affidavit in response
- 4.Whether the preliminary objection on jurisdiction should be upheld
Key legal issues
#Jurisdiction to reopen a concluded appeal
The Court of Appeal has no jurisdiction to reopen, re-hear or recall a concluded appeal; that jurisdiction is conferred nowhere in the Constitution, the Appellate Jurisdiction Act or the Court of Appeal Rules, save for restoration of appeals dismissed for non-attendance under rules 55(3) and 99(1).
The Court is a creature of statute exercising only jurisdiction conferred by law; unlike the High Court, which has review under section 80 of the Civil Procedure Act, the Appellate Jurisdiction Act contains no equivalent provision. Rule 1(2)/(3) inherent powers operate only within a pending appeal. English decisions (Pinochet, Taylor v Lawrence) rest on jurisdictions with different constitutional foundations and, where inconsistent with Kenyan written law, cannot be adopted via section 3(1) of the Judicature Act. Any residual jurisdiction is a matter for Parliament.
Status of Musiara and Chris Mahinda
The statements in Musiara Ltd v Ntimama and Chris Mahinda that the Court may reopen an appeal where bias is established are obiter and were expressly departed from; Rafiki Enterprises Ltd was preferred.
In neither case was the question of jurisdiction raised or argued, and in Musiara the decision rested on rule 56(2), which concerns rescission of orders, not reopening of appeals. The Court is free to choose between its conflicting decisions (Dodhia; Young v Bristol Aeroplane) and to depart from a decision given per incuriam. Rafiki Enterprises is consistent with the Appellate Jurisdiction Act and with Lakhamshi Brothers and Somani's, and enjoys 'high pedigree' in Kenya.
Judicial independence and a judge's right to answer bias allegations
A judge may not file an affidavit defending himself against post-judgment allegations of bias; the principle of finality and judicial independence outweighs the natural justice principle of being heard in such circumstances, subject to exceptions such as recusal applications made before or during hearing or questions under section 129 of the Evidence Act.
Section 77(9) of the Constitution protects both the right to a fair hearing and the independence and impartiality of courts. Judicial immunity and the policy in Garnett v Ferrand and Sirros v Moore ensure judges are free from being made to defend their decisions in the arena. Bias objections must be raised before or during the hearing so that the judge may recuse himself; raising them after judgment undermines the administration of justice and the finality doctrine.
Test for a preliminary objection
The objection was taken on the settled Mukisa Biscuit principle that the motion fails even if the facts alleged are true, because no relief could be granted for want of jurisdiction.
Counsel for the respondents argued that even assuming the alleged bias were true, the applicants were not entitled to the relief sought since the Court lacks the power to reopen the appeal. The Court accepted this framing, holding the motion incompetent and striking it out rather than adjudicating the truth of the affidavits.
Finality of litigation as a public policy principle
The doctrine of finality, grounded in public interest, requires that litigation end at a certain point; the two competing principles - finality and the appearance of justice - must be harmonized, and here finality prevails.
Drawing on Lord Wilberforce in the Ampthill Peerage Case, the Court recognized that the law closes the book on determined disputes in the interest of peace, certainty and security, with safeguards such as appeals and exceptional review. The applicants' remedy of alleging fundamental rights violations could not be entertained in a motion with no pending appeal, and referring the matter to the High Court under section 84 would produce the absurdity of the High Court reversing a Court of Appeal decision made on appeal from that very High Court.
Legal principles established
#- The Court of Appeal in Kenya has no jurisdiction, statutory or inherent, to reopen, re-hear, recall or set aside its own judgment in a concluded appeal; its jurisdiction is limited to appeals from the High Court as conferred by law.
- Allegations of bias must be raised before or during the hearing of an appeal; once this Court has delivered judgment it becomes functus officio and bias cannot be raised to reopen the matter.
- The remarks in Musiara Ltd v Ntimama and Chris Mahinda suggesting the Court may reopen a concluded appeal are obiter and cannot stand against the line of authority beginning with Lakhamshi Brothers and Rafiki Enterprises.
- A judge should not be allowed to enter the arena of litigation concerning matters he is or was seised of; a judge's affidavit responding to post-judgment allegations of bias is filed contrary to public policy.
Court orders
#- 1.Preliminary objection as to jurisdiction raised on behalf of the 1st, 2nd, 3rd and 4th respondents upheld
- 2.Notice of motion dated 12th November 2003 and lodged on 13th November 2003 declared incompetent and does not lie; struck out
- 3.Costs of the application awarded to the 1st, 2nd, 3rd and 4th respondents, to be paid by all the applicants and the 5th respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading ruling balancing finality of litigation against the appearance of justice; held the Court of Appeal has no jurisdiction, statutory or inherent, to reopen, re-hear or recall a concluded appeal, upheld the preliminary objection and ordered the motion struck out with costs.
In the end I would myself uphold the preliminary objection raised on behalf of the 1st, 2nd , 3rd and 4th respondents and the consequence of my upholding the preliminary objection must be that the notice of motion dated 12th day of November, 2003 and lodged in this Court on 13th November, 2003 is incompetent and does not lie.p. 15
Wrote the judgment
Separate ruling addressing the independence of judges and the expunging of Shah JA's affidavit; held a judge should not be allowed to enter the arena of litigation over matters he seised of, and that the Court became functus officio on delivery of judgment and lacks jurisdiction to reopen the appeal.
In the circumstances, I do not think this Court has the jurisdiction to entertain this application. In the result, I would strike out the application dated 12th November 2003 and filed in Court on 13th November 2003 for want of jurisdiction.p. 19
Wrote the judgment
Separate ruling expressly departing from Musiara and Chris Mahinda; traced the statutory conferral of the Court's jurisdiction, held the contrary statements in Musiara were obiter, and that English authority on reopening appeals cannot be adopted where inconsistent with Kenyan written law.
It is beyond contention that there is no statute conferring jurisdiction on the Court of Appeal to re-open a finalized appeal nor are the rules of the Court relied on in Rafiki Enterprises Ltd, Musiara and Chris Mahinda capable of conferring such jurisdiction on the Court.p. 23
- Jurisdiction invoked
- Sections 64(1) and 77(9) of the (former) Constitution and section 3 of the Appellate Jurisdiction Act (Cap 9) - the Court's jurisdiction in relation to appeals from the High Court as conferred by law
Relief refused
#Setting aside in toto of the judgment and order of 30th September 2002 in Civil Appeal No. 63 of 2001 and a fresh hearing before a differently constituted bench
The Court of Appeal has no jurisdiction under the Constitution, the Appellate Jurisdiction Act or its Rules to reopen a concluded appeal; the power to reopen and rehear an appeal is to be found nowhere in the Constitution or the Act
Stay of all further proceedings in the High Court in Winding Up Cause No. 44 of 1999 including taxation of the principal respondents' bill of costs
Ancillary to the principal relief which failed for want of jurisdiction
Admission of and reliance on Mr. Justice Shah's affidavit and his advocate's notice of appointment
Filed contrary to public policy protecting judicial independence; expunged from the record
Costs
Costs of the application to the 1st, 2nd, 3rd and 4th respondents, to be paid by all the applicants and the 5th respondent.
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.
In the end I would myself uphold the preliminary objection raised on behalf of the 1st, 2nd , 3rd and 4th respondents and the consequence of my upholding the preliminary objection must be that the notice of motion dated 12th day of November, 2003 and lodged in this Court on 13th November, 2003 is incompetent and does not lie.
I would award the costs of the application to the 1st, 2nd, 3rd and 4th respondents to be paid by all the appellants and the 5th respondent.
The power to re-open and rehear an appeal is to be found nowhere in the Constitution. It is to be found nowhere in the Appellate Jurisdiction Act.
In the circumstances, I do not think this Court has the jurisdiction to entertain this application. In the result, I would strike out the application dated 12th November 2003 and filed in Court on 13th November 2003 for want of jurisdiction.
It is beyond contention that there is no statute conferring jurisdiction on the Court of Appeal to re-open a finalized appeal nor are the rules of the Court relied on in Rafiki Enterprises Ltd, Musiara and Chris Mahinda capable of conferring such jurisdiction on the Court.
The remarks made by the Court with regard to the re-opening and re-hearing of an appeal in the MUSIARA LTD Case, were, accordingly, made orbiter as they were not necessary for the determination of the issue at hand .
Whatever decisions which emanate from the Court, except those I have stated above, are final and binding on the parties concerned.
Nor should a Judge be allowed to enter into the arena of litigation concerning matters he is or was seised of.
Issues in the judgment
#Inconsistent filing date of the appeal in the quoted motion order - '12th April 2001' in Omolo JA's quotation versus '12th April 2002' in Githinji JA's quotation of the same order.
Date of Goswami's replying affidavit stated as 18th May 2003 although it was sworn in response to affidavits filed 12th November 2003.
Lakhamishi Brothers citation given as [1966] EA 313 in Omolo JA's ruling but as [1960] EA 313 in Githinji JA's ruling.
Githinji JA's concluding passage refers to the application as 'dated 12th November, 2000' whereas the application is dated 12th November 2003.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JASBIR SINGH RAI & 3 OTHERS v TARLOCHAN SINGH RAI & 4 OTHERS [2007] KECA 132 (KLR)", Case Analysis (2007). Civil Application No. 307 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/132/eng@2007-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.