Ondiek & another v National Bank of Kenya Ltd & another
The bottom line
#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 to 'review' a judgment of the High Court after hearing and determining an appeal from it
- 2.Whether the present application for review of the Court's prior judgment and rulings is res judicata
- 3.Whether the application discloses exceptional circumstances justifying invocation of the court's residual jurisdiction to re-open its decisions
Key legal issues
#Jurisdiction to review a High Court judgment
The Court of Appeal cannot 'review' a High Court judgment, especially after determining an appeal from it.
The applicants sought review of the High Court judgment of May 2, 2011. The court held that review is not an available remedy against a first-instance judgment once the appellate process over that judgment has been concluded; the proper avenue was the appeal, which was heard and determined.
Res judicata against repeat review applications
An application seeking review of issues already determined in earlier review applications between the same parties is res judicata.
Relying on section 7 of the Civil Procedure Act and IEBC v Maina Kiai, the court found the issues raised were directly and substantially in issue in the applicants' former applications, between the same parties, heard and determined by a competent court. The application was a regurgitation of the litigation history inviting the court to sit on appeal against its own decisions.
Residual jurisdiction to re-open decided matters
The residual jurisdiction to re-open decisions exists but applies only in exceptional circumstances such as fraud, bias or other injustice, balancing finality and justice.
Quoting Benjoh Amalgamated, the court reaffirmed that a court of final resort has residual jurisdiction to re-open decided matters in cases of fraud, bias or injustice, but this must be weighed against the finality principle and invoked with circumspection, only in cases whose decisions are not appealable to the Supreme Court. No such circumstances were disclosed here.
Legal principles established
#- The Court of Appeal has no jurisdiction to review a judgment of the High Court after it has heard and determined an appeal from that judgment.
- The Court of Appeal's jurisdiction to review and re-open its own decisions is residual, to be exercised with circumspection and only in exceptional circumstances.
- A repeat application raising issues already heard and determined in prior applications between the same parties is res judicata and an abuse of process.
Court orders
#- 1.The application dated October 8, 2021 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- CA. No. 23 of 2016
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal to review and re-open its own decisions, exercised only in exceptional circumstances
Relief refused
#Review of the High Court judgment dated May 2, 2011
The Court of Appeal has no jurisdiction to review a High Court judgment, particularly after hearing and determining an appeal from it
Review of the Court of Appeal judgment dated October 29, 2015 and ruling dated October 5, 2017
The application is res judicata and discloses no exceptional circumstances justifying the court's residual jurisdiction
Costs
The application is dismissed with costs to the respondents.
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 application has absolutely no merit and the same is dismissed with costs to the respondents. It is so ordered.
the jurisdiction of this court to review and re-open its decisions is residual and to be exercised with circumspection, and only in exceptional circumstances
not only is the current application res judicata, but it is also blatant abuse of the process of the court
it hardly needs any emphasis that this court has no jurisdiction to “review” a judgment of the High Court, particularly after it has heard and determined an appeal from the same judgment
Issues in the judgment
#Inconsistent ruling dates: heading cites rulings of 15th October 2017 and 19th March 2021, body cites rulings of October 5, 2017 and May 19, 2021
Typographical error in date of judgment under review
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondiek & another v National Bank of Kenya Ltd & another", Case Analysis (2022). Civil Application 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1400/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.