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Court of AppealDismissedEldoret CACA No. 54 of 2016 (Notice of Motion dated 21st November 2019)

Sigei v Arusei & another (Civil Application E041 of 2020) [2024] KECA 616 (KLR)

Court of Appeal of Kenya
24 May 2024
2,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to reopen its 2019 land dispute judgment, confirming it cannot review its own decisions except in rare exceptional cases.

What this practically means

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Executive summary

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This was a notice of motion dated 21st November 2019 in which the applicant sought review of the Court of Appeal's judgment of 25th July 2019 in Eldoret CACA No. 54 of 2016, contending that the judgment failed to address crucial grounds of appeal, in particular the alleged encroachment by the respondents on 0.25 acres of land not sold to the 1st respondent. The background was a dispute over plots 171-175 (amalgamated into plot No. 41, LR No. 2691): the trial court dismissed both the respondents' suit and the applicant's counterclaim; the Environment and Land Court found that, despite the absence of Land Control Board consent for agricultural land, receipt of the purchase price, possession and improvement of the land created a constructive trust in favour of the 1st respondent and, derivatively, the 2nd respondent; and this Court in a second appeal upheld the applicability of constructive trust and proprietary estoppel notwithstanding the lack of consent. The Court of Appeal (Ochieng, Achode and Korir, JJA) held that the Constitution and the law do not grant the Court of Appeal authority to review its own decisions except in exceptional circumstances where a decision violates natural justice. Relying on Benjoh Amalgamated Ltd v Kenya Commercial Bank and Menginya Salim Murgani v Kenya Revenue Authority, the Court reaffirmed that a court, having delivered judgment, becomes functus officio and its residual review jurisdiction must be invoked with circumspection and only in non-appealable cases. Since the applicant's alleged error was illusory - the dismissal of both the suit and counterclaim meant the acreage issue could not be determined - the application was an attempt to make out a new case. The application was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application meets the threshold for granting an order for review of the Court's judgment dated 25th July 2019 in Eldoret CACA No. 54 of 2016

Key legal issues

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01

Whether the Court of Appeal may review its own judgment on the ground that it failed to address all issues raised in an appeal

Holding

No. The Constitution and the law do not grant the Court of Appeal authority to review its own decisions or orders save in exceptional circumstances involving violation of natural justice; the residual jurisdiction is to be invoked with circumspection and only in non-appealable cases.

Reasoning

The Court reaffirmed that a party aggrieved by a judgment may appeal or seek review, but the Court of Appeal has no express power to review its own decisions. Following Benjoh Amalgamated and Menginya Salim Murgani, only a residual, exceptional jurisdiction exists for fraud, bias or other injustice, exercised circumspectly, and a functus officio court cannot revisit its judgment on the merits. As the applicant could still appeal to the Supreme Court, review was unavailable; the acreage issue had been conclusively settled since both claim and counterclaim were dismissed.

p. 3
02

Whether the alleged failure to determine the acreage/encroachment issue amounted to an error apparent on the face of the record

Holding

No. Because the respondents' suit and the applicant's counterclaim were both dismissed, the parties remained as they were before the suit and the issue of acreage could not be determined.

Reasoning

The Court traced the litigation: the trial court dismissed both claims for want of title; the Environment and Land Court found a constructive trust in favour of the purchasers despite lack of Land Control Board consent; and this Court upheld the constructive trust and proprietary estoppel analysis. Since neither party was required to do anything after the dismissal of both claims, there was no unresolved issue capable of forming the basis of review; the applicant was attempting to make out a new case.

p. 4

Legal principles established

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  • The Court of Appeal has no authority to review its own decisions or orders, save in exceptional circumstances where it has inherent power to set aside a decision that violates the principles of natural justice
  • The residual jurisdiction of the Court of Appeal to review its own decisions should be invoked with circumspection, and only in cases whose decisions are not appealable to the Supreme Court
  • After passing judgment, a court becomes functus officio and cannot revisit the judgment on merits or exercise judicial power over the same matter, save as provided by law

Court orders

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  1. 1.The notice of motion dated 21st November 2019 is dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Court of Appeal of Kenya (own judgment dated 25th July 2019 in Eldoret CACA No. 54 of 2016)
Eldoret CACA No. 54 of 2016
Jurisdiction invoked
The Court of Appeal's limited residual/inherent jurisdiction to review its own decisions (no express statutory power; no Article cited)

Relief refused

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Review of the judgment dated 25th July 2019 in Eldoret CACA No. 54 of 2016 on the ground of error apparent on the face of the record (failure to address the issue of acreage/encroachment)

The Court has no authority to review its own decisions save in exceptional circumstances; the matters raised were conclusively settled; the applicant is seeking to make out a new case under the disguise of review

p. 5

An order that the Court write a fresh judgment addressing all issues including the alleged excessive acreage occupied by the respondents

The issue of acreage could not be determined as both the suit and counterclaim had been dismissed, leaving the parties as they were before the suit

p. 4

Costs

The application was dismissed with costs to the respondents

Quotable passages

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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 well settled that where a party is aggrieved by the judgment, ruling, or order of the court, such a party can either file an appeal or apply for review. However, it is trite that the Constitution and the law do not grant the Court of Appeal the authority to review its own decisions or orders, save in exceptional circumstances where it has an inherent power to set aside a decision that violates the principles of natural justice.
p. 3Limits of the Court of Appeal's power to review its own decisions
The jurisprudence that emerges from the case- law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice
p. 4Residual jurisdiction to reopen decided matters
In the result, we find that the applicant is seeking to make out a new case based on an application for review. The application lacks merit. It is hereby dismissed with costs to the respondents.
p. 5Final orders - dismissal of the review application with costs

Issues in the judgment

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minor

The respondent's name is spelled differently in the same judgment ('Murgari' in submissions and 'Murgani' when cited by the Court)

minor

The judgment's opening paragraphs (1 and 2) are blank and the application is described only by date without a case number of its own; the Court's own appeal number is inferred from the references to Eldoret CACA No. 54 of 2016

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, "Sigei v Arusei & another (Civil Application E041 of 2020) [2024] KECA 616 (KLR)", Case Analysis (2024). Eldoret CACA No. 54 of 2016 (Notice of Motion dated 21st November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/616/eng@2024-05-24

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