Patrick Gathenya v Esther Njoki Rurigi & another [2008] KECA 39 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot re-open its own final judgments, so losing parties must look elsewhere — the motion was struck out 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 is at liberty to set aside or review its own judgments and reopen concluded litigation for further agitation
- 2.Whether the applicant's motion, founded on alleged violations of the Constitution, rules of natural justice and common law, fell within any residual jurisdiction of the Court
Key legal issues
#Whether the Court of Appeal can set aside or review its own final judgment on a motion alleging constitutional or natural justice violations
No. Once an appeal is concluded, the Court has no jurisdiction to re-open it, and such a motion must be struck out.
Relying on the five-judge bench decision in Jasbir Singh Rai v Tarlochan Singh Rai, which resolved the conflict between Rafiki Enterprises v Kingsway Tyres on one hand and Musiara v Ntimama and Mahinda on the other, the Court held that the power to re-open a concluded appeal exists nowhere in the Constitution or the Appellate Jurisdiction Act. The public policy principle that there must be an end to litigation prevailed. Invocations of sections 64 and 77 of the Constitution and section 3 of the Appellate Jurisdiction Act cannot found jurisdiction to re-open. The Court found the applicant's attempted distinctions a distinction without a difference.
Whether the Court had jurisdiction to deal with the application before it
The Court found it had jurisdiction to deal with the application in the manner sought - namely by striking it out.
The Court distinguished between jurisdiction to re-open the appeal (which is absent) and jurisdiction to dispose of the motion before it. Having found no pending appeal and no statutory basis for re-opening, the proper disposition of the motion was striking out, which the Court ordered. This confirms that a motion seeking to re-open a concluded appeal is amenable to being struck out rather than dismissed after full argument on the merits.
Legal principles established
#- The Court of Appeal has no residual jurisdiction to re-open, re-hear or recall its own concluded decision and substitute it with another, even where a party alleges violation of constitutional rights or rules of natural justice.
- The power to re-open and re-hear a concluded appeal is found neither in the Constitution nor in the Appellate Jurisdiction Act.
- A party who feels aggrieved by a Court of Appeal decision cannot, in effect, reverse that decision by resort to the High Court.
Court orders
#- 1.The applicant's notice of motion seeking to set aside the judgment and orders of 29th April 2005 in Civil Appeal No. 128 of 2002 is struck out
- 2.Costs of the struck out motion shall be borne by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 128 of 2002
- Jurisdiction invoked
- Inherent supervisory jurisdiction of the Court of Appeal over its own applications; motion under the Appellate Jurisdiction Act framework invoking sections 64 and 77 of the (former) Constitution
Relief refused
#Setting aside of the judgment and orders of the Court of Appeal dated 29th April 2005
The Court has no jurisdiction to re-open, re-hear and recall its earlier decision and substitute it with another; there was no appeal pending before the Court when the motion was filed
Costs
Costs of the struck out motion shall be borne by the applicants (the applicant).
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.
the Court of Appeal had no jurisdiction to re-open, re-hear and then recall its earlier decision and substitute it with another
The public policy principle that there must be an end to litigation thus triumphed over the equally weighty principle that justice must be done and be seen to be done in each case that comes before the courts for determination.
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 end we find that there is jurisdiction to deal with the application before us in the manner sought. The application is for striking out and we so order. Costs of the struck out motion shall be borne by the applicants.
Issues in the judgment
#The costs order uses the plural 'applicants' although only one applicant (Patrick Gathenya) appears in the application.
The ruling states the motion was filed 31st October 2005, 'six months after the judgment' of 29th April 2005, though the interval is closer to six months; a quoted passage from the Rai case also refers to the motion being filed on 13th November 2003 while the Rai decision is elsewhere said to have been rendered on 7th December 2007.
The ruling says the application 'is for striking out and we so order' without a formal 'dismissed' determination of the setting-aside relief, though the effect is refusal of that relief.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Gathenya v Esther Njoki Rurigi & another [2008] KECA 39 (KLR)", Case Analysis (2008). Civil Appli No. 290 of 2005 (UR 180/05). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/39/eng@2008-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.