Malamu v Gakuru & another (Civil Appeal 31 of 2018) [2021] KECA 359 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can correct its own ruling when a registry error leaves a party's filed documents out of the hearing, then ordered a fresh hearing.
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 has jurisdiction to review its own ruling of 23rd October 2020 or is functus officio
- 2.Whether the respondents' only remedy was to appeal to the Supreme Court or to apply to set aside the ruling within 14 days
- 3.Whether the inadvertent non-availability of the respondents' replying affidavit compromised the respondents' right to a fair hearing
- 4.Whether the respondents' delay in bringing the application should defeat it
Key legal issues
#Whether the Court is functus officio and thus lacks jurisdiction to review its own interlocutory ruling
The Court has jurisdiction to review its ruling where the ruling resulted from an inadvertent omission of a vital filed document; functus officio does not apply in those circumstances
The Court distinguished between a party seeking to re-litigate a concluded determination and a party seeking correction of a decision reached on a deficient record. Because the Deputy Registrar confirmed the replying affidavit was filed but inadvertently not placed before the judges, the ruling of 23rd October 2020 was not a true determination on the merits of the respondents' opposition. The Court therefore held that its jurisdiction to review was properly invoked under rules 31 and 57(2).
Whether the respondents were obliged instead to appeal to the Supreme Court or to apply for setting aside within 14 days
The respondents' remedy did not lie in an appeal to the Supreme Court, which cannot entertain an appeal from an interlocutory ruling of the Court of Appeal, and no blame attaches to them for the timing of the application
The appellant argued the respondents should have filed a notice of appeal and sought leave to appeal to the Supreme Court, or applied to set aside the ruling within 14 days. The Court rejected this, noting the bar on appeals to the Supreme Court from interlocutory rulings of the Court of Appeal, and found the respondents acted promptly by engaging the Deputy Registrar as soon as they became aware of the ruling. Delay was therefore not attributable to them.
Whether the inadvertent non-availability of the replying affidavit compromised the respondents' fair hearing rights
Yes - the failure to avail the respondents' replying affidavit and other filed documents compromised their right to a fair trial guaranteed by Articles 25(c) and 50 of the Constitution
The Court had stated in the impugned ruling that the motion was unopposed when in fact a replying affidavit, preliminary objection and submissions had been filed. The Deputy Registrar's letter confirmed the registry's inadvertent omission. The Court held that a hearing conducted on an incomplete record against a party who had duly filed opposition violated the constitutional guarantee of a fair trial, which was sufficient ground to review and set aside the ruling.
Legal principles established
#- The Court of Appeal has jurisdiction to review its own ruling where the ruling was occasioned by an inadvertent omission of a vital document that had been filed by a party; functus officio does not bar such a review
- A party whose filed documents were inadvertently not availed to the judges at the hearing has had the right to a fair trial under Articles 25(c) and 50 compromised, which is sufficient ground for review
- The Supreme Court cannot entertain an appeal from an interlocutory ruling of the Court of Appeal
Court orders
#- 1.The Court's ruling delivered on 23rd October 2020 is reviewed and set aside in its entirety
- 2.The application dated 25th February 2020 seeking to adduce additional evidence shall be heard afresh before a bench that shall exclude Musinga, (P), Nambuye and Murgor, JJ.A.
- 3.Each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Not applicable - this is a review of this Court's own ruling of 23rd October 2020
- Jurisdiction invoked
- Articles 25(c), 27, 50 and 159 of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 31 and 57(2) of the Court of Appeal Rules
Relief refused
#The appellant's request that the respondents' application for review be dismissed
The Court found the respondents' right to a fair trial was compromised by the inadvertent omission of their replying affidavit, and the interests of justice favoured review
Costs
Each party shall bear its own costs of this application.
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.
It is therefore evident that the respondents' replying afidavit was inadvertently not availed to the judges during the hearing of the appellant's application.
To that extent, the respondents' right to a fair trial that is guaranteed by Articles 25(c), and 50 of the Constitution was compromised.
we are satisfied that the Court has jurisdiction to review its ruling that was occasioned by an inadvertent omission of a vital document that had been filed by the respondents.
In any event, the Supreme Court cannot entertain an appeal from an interlocutory ruling of this Court.
Consequently, we hereby review this Court's ruling delivered on 23rd October 2020 and set it aside in its entirety. We further direct that the application dated 25th February 2020 seeking to adduce additional evidence be heard afresh before a bench that shall exclude Musinga, (P), Nambuye and Murgor, JJ.A. Each party shall bear its own costs of this application.
Issues in the judgment
#The judgment does not state the case title, case number or names of the parties; party names are recorded generically as 'the appellant' and 'the respondents'
The judgment names the Deputy Registrar as Lorraine Ogombe in the letter of 11th November 2020, but earlier text refers to correspondence from the Deputy Registrar without a name; no contradiction in substance, noted for completeness of the registry correspondence chronology
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malamu v Gakuru & another (Civil Appeal 31 of 2018) [2021] KECA 359 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/359/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.