Khadija Mohamed v Amina Abdi Duba & another
The bottom line
#The Court of Appeal refused to reopen its land ownership ruling, confirming that losing parties cannot get a second chance by simply disagreeing with the decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to ASA & ASA Associates Advocates to come on record in place of Machuka & Company Advocates
- 2.Whether the judgment of March 18, 2022 contains an apparent error on the face of the record warranting review
- 3.Whether the court retains jurisdiction to review its own judgment, or is functus officio
Key legal issues
#Whether the alleged misidentification of parcel numbers in the judgment constitutes an apparent error on the face of the record
No reviewable error was established; the alleged errors were explained by the evidence and the court's analysis
The appellant argued the court wrongly found indentures dated February 28, 2005 related to parcels 1734/528 and 1734/459 when they related to 10719/454 and 10719/455. The court found the discrepancy was explained by the 1st respondent's testimony that plots were misnumbered in documents but correct on the ground, corroborated by Maisha Mapya Self Help Group officials, and by the court's own evaluation of the evidence in the judgment.
The scope of the Court of Appeal's residual jurisdiction to review its own judgment
The jurisdiction exists but is exceptional, exercised with circumspection, and was not attracted on these facts
Relying on Benjoh Amalgamated, the court reiterated that a court of final resort has residual jurisdiction to reopen decided matters in cases of fraud, bias or other injustice, balancing the finality principle against the justice principle. The appellant demonstrated no such injustice; her complaint was a factual disagreement already resolved in the judgment.
Legal principles established
#- The Court of Appeal's residual jurisdiction to review its own decisions must be invoked with circumspection and only in exceptional cases
- A party seeking review must demonstrate an error on the face of the record; mere dissatisfaction with the judgment does not suffice
Court orders
#- 1.Leave granted to ASA & ASA Associates Advocates to come on record in place of Machuka & Company Advocates
- 2.The other prayers in the notice of motion dated June 20, 2022 (including review of the judgment) dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal at Malindi
- Malindi Civil Appeal No 83 of 2019
- Jurisdiction invoked
- Inherent/residual jurisdiction of the Court of Appeal to review its own judgment (review application under the court's residual powers as discussed in Benjoh Amalgamated)
Relief refused
#Review of the judgment and orders of March 18, 2022 declaring the respondents legal proprietors
No error of law or other ground demonstrated; the alleged errors were explained by the evidence on record
Orders directing a fresh hearing or re-hearing of the matter
Fell with the dismissed review prayer
Costs
The dismissed prayers were ordered with costs to the respondents; the earlier judgment had ordered the appellant to bear the respondents' costs of the suit and counterclaim in the ELC and of the appeal.
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.
We accordingly find no merit in the appellant’s application dated June 20, 2022, save for the prayer that leave be granted to the law firm of ASA & ASA Associates Advocates to have the conduct of this matter on behalf of the appellant in place of the law firm of Machuka & Company Advocates which we have allowed.
The other prayers in the said notice of motion application dated June 20, 2022 are hereby dismissed with costs to the respondents.
As shown in the various authorities, this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court).
We accordingly affirm the orders of the ELC dismissing the appellant’s suit, and declare the respondents the legal proprietors of, and entitled to possession of the parcels of land known as 1734/528 and 1734/459 Maisha Mapya.
Issues in the judgment
#Venue discrepancy: heading says Malindi, delivery clause says Mombasa
Prayer for review as recorded is grammatically incomplete, omitting the relief sought
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khadija Mohamed v Amina Abdi Duba & another", Case Analysis (2022). Civil Appeal (Application) 83 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1384/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.