Valley Confectionary Limited v Ototo (Civil Application E107 of 2023) [2025] KECA 133 (KLR)
The bottom line
#The Court of Appeal refused to revive Valley Confectionary's struck-out appeal, ruling that email service counts and review is reserved for exceptional cases.
What this practically means
#Executive summary
#Key legal issues
#Threshold for invoking the Court's residual jurisdiction to review its own decisions
The threshold is high; review is reserved for exceptional cases where correcting an injustice outweighs the finality principle, as set out in Benjoh Amalgamated Ltd v Kenya Commercial Bank Limited
The Court restated the settled position that even where a final court is not statutorily conferred with jurisdiction to reopen a decided matter, it has residual jurisdiction in cases of fraud, bias or other injustice. This must be balanced against the finality principle hinged on public interest and the justice principle pegged on doing justice to parties and maintaining public confidence. The applicant had to demonstrate exceptional circumstances warranting the exercise of that jurisdiction.
Whether the applicant's advocate was served with the application dated 21st November 2023
The record showed multiple emails served on the applicant's advocate's two email addresses, including a case management notice from the Court; the applicant's attendance at the 15th March 2024 mention following an emailed notice proved the addresses were in active service
The Court catalogued four email communications to Munene.chege@yahoo.com and Munene.chegeadv@gmail.com, including service of the application twice, an affidavit of service, and case management notices. The advocate attended the mention of his own appeal after receiving an emailed notice to those same addresses, demonstrating active service. The Court queried selective receipt or sighting of emails and found the non-service assertion untenable.
Legal principles established
#- The Court's residual jurisdiction to review its own decisions must only be exercised in exceptional cases to correct or avert injustices and where such circumstances outweigh the principle of finality in litigation
- The Court will not exercise its review power in favour of a party who is not diligent in dealings with the court
Court orders
#- 1.The application seeking to vacate, set aside and/or review the orders of 27th February 2024 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court, Nakuru (Nakuru ELRC No. 127 of 2015); interlocutory decision of Court of Appeal bench of Tuiyott, Ochieng & Korir JJA dated 27th February 2024
- Nakuru ELRC No. 127 of 2015
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal to review its own decisions, invoked under Rule 3B(a) of the Appellate Jurisdiction Act, Rule 5 of the Court of Appeal Rules 2022 and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Valley Confectionary Limited v Ototo (Civil Application E107 of 2023) [2025] KECA 133 (KLR)", Case Analysis (2025). Nakuru Civil Appeal No. E023 of 2020 (ruling application re: Civil Application E107 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/133/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.