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Court of AppealDismissedApplication dated 12th May, 2022 in Civil Appeal No 64 of 2019· [2023] KECA 60 (KLR)

Cecilia Situmai Ndeti & 1 other v Matei Julius Mulili Ndeti & Nzioki Mulili Ndeti (administrators of The Estate of Harrison Mulili Ndeti Deceased) & 4 Others

Court of Appeal
3 February 2023
7,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to reopen its own 2022 judgment in a long-running Kenyan family land dispute, confirming that final judgments stay final except in rare, exceptional circumstances.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Achode and Mativo JJ.A) dismissing an application dated 12th May, 2022 seeking review and setting aside of the Court's own judgment of 18th February, 2022 in Civil Appeal No 64 of 2019. The underlying dispute, a four-decade succession and family property battle over the estate of Harrison Mulili Ndeti, had led that court to allow the appeal, revoke a confirmed grant issued on 30th October, 2013, and prohibit distribution of contested properties pending determination of ELC Cause No 1116 of 2015, with each party bearing its own costs. The applicants argued that the judgment was rendered per incuriam, was a nullity for want of jurisdiction because the record of appeal was defective, and that the court failed to consider a supplementary record of appeal. The Court first framed the jurisprudential question whether it has power to vary a final order after fully hearing an appeal. Surveying English, Commonwealth, African and Indian authorities, it held that once a court pronounces final judgment it becomes functus officio, subject only to the slip rule, but acknowledged a residual jurisdiction to re-open its decisions in exceptional circumstances where injustice or a miscarriage of justice has eroded public confidence in the administration of justice and no appeal lies. Adopting the Kamau James Gitutho threshold, it found that none of the applicants' grounds approached that threshold: the leave granted to file the supplementary record extinguished the incompetence argument, and the remaining complaints were grounds of appeal, an impermissible appeal in disguise. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to review its own final judgment

Holding

The Court acknowledged that it has a residual jurisdiction to re-open its decisions in exceptional circumstances, anchored in fair hearing, but the general rule is finality once a judgment is pronounced; functus officio applies subject only to the slip rule under rule 37 of the Court of Appeal Rules, 2022

Reasoning

Surveying comparative authority (England, Nigeria, Australia, India, South Africa, the EACA and its successors) and the Court's own conflicting prior holdings, the court concluded that post-2010 decisions have acknowledged a residual jurisdiction to re-open decisions where injustice and erosion of public confidence are shown and no appeal lies. That jurisdiction is discretionary, confined to appropriate cases, and is not an open licence to re-litigate.

p. 11
02

Whether the applicants' grounds (defective record, failure to consider the supplementary record, per incuriam, jurisdictional want) met the exceptional threshold

Holding

None of the grounds fell within the exceptional circumstances; the leave granted to file the supplementary record destroyed the claim of a defective record, and the per incuriam and non-consideration arguments were grounds of appeal outside the ambit of review

Reasoning

The court found that the judgment itself recorded that leave to file a supplementary record of appeal had been granted on 20th January, 2020, extinguishing the incompetence argument. The complaint that the judges did not consider particular material, and the per incuriam claim, were properly grounds of appeal; the applicants were impermissibly inviting the court to exercise appellate jurisdiction over its own decision.

p. 12
03

Whether Fredrick Outa (Supreme Court) supports review in exceptional circumstances

Holding

The court corrected counsel's misreading, clarifying that the Supreme Court held it has no jurisdiction to sit on appeal over or review its own judgments save under section 21(4) of the Supreme Court Act

Reasoning

Counsel had relied on the Supreme Court's citation of foreign authorities as if they were the Court's holding. The Court of Appeal pointed out the actual paragraph 90 holding and declined to follow counsel's mischaracterisation, noting that counsel appears to have read the decisions referred to by the Apex Court as opposed to its finding.

p. 11

Legal principles established

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  • Once a court has duly pronounced a final judgment or order, it becomes functus officio and has no authority to correct, alter or supplement it, save under the slip rule
  • The Court of Appeal possesses residual jurisdiction to re-open its own decisions, but only in exceptional circumstances where injustice or miscarriage of justice is shown, public confidence in the administration of justice has been eroded, and no appeal lies against the decision
  • An invitation to invoke residual jurisdiction cannot be used as an appeal in disguise to re-argue grounds that were or could have been raised in the appeal
  • Re-opening proceedings requires clearly established probability of a significant ("real") injustice and the absence of an effective alternative remedy

Court orders

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  1. 1.The application dated 12th May, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya (by way of the Court of Appeal's own judgment of 18th February, 2022 in CA 64/2019, which had reversed the High Court ruling)
High Court Succession No 1578 of 2012; Court of Appeal Civil Appeal No 64 of 2019
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act and Rules 1(2), 5(2), 29, 35 and 42 of the Court of Appeal Rules, 2010 (invoked by the applicants for review/residual jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cecilia Situmai Ndeti & 1 other v Matei Julius Mulili Ndeti & Nzioki Mulili Ndeti (administrators of The Estate of Harrison Mulili Ndeti Deceased) & 4 Others", Case Analysis (2023). Application dated 12th May, 2022 in Civil Appeal No 64 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/60/eng@2023-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.