NMS v TS (Civil Application E076 of 2024) [2025] KECA 774 (KLR)
The bottom line
#The Court of Appeal refused to let an appellant swap a court-ordered €61,000 deposit for other security, ruling that inability to pay is not a valid ground for review.
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 should review its orders of 27th September 2024 by substituting the ordered cash deposit of €61,000 with alternative security (title deed for Kwale/Matuga/xxx and certificates of Treasury Bills)
- 2.Whether the Court should clarify the applicable exchange rate for the ordered deposit
Key legal issues
#Whether the Court of Appeal may review its own prior orders on the ground that the applicant cannot raise the ordered deposit
No. The jurisdiction to review the Court's own decisions is residual and exercised with circumspection; inability to raise the amount ordered, absent any mistake or error in the orders, does not justify review.
The Court reproduced the orders of 27th September 2024 and found them clear and unambiguous. Relying on Benjoh Amalgamated and Menginya Salim Murgani, it held that review jurisdiction exists only in cases of fraud, bias or other injustice, and that after judgment a court becomes functus officio and cannot revisit the matter on the merits save as provided by law. The applicant established no mistake or error in the orders; mere inability to liquidate securities to raise €61,000 is insufficient.
Legal principles established
#- The Court of Appeal's residual jurisdiction to review its own decisions must be invoked with circumspection, limited to cases of fraud, bias or other injustice, balancing the finality principle against the justice principle.
- A court, after passing judgment, becomes functus officio and cannot revisit the judgment on the merits or exercise judicial power over the same matter save as provided by law.
- Mere inability to comply with an order, without any mistake or error in the order, is not a basis for the Court to review its own orders.
Court orders
#- 1.The application dated 17th October 2024 is dismissed with costs to the respondent
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
- Environment and Land Court
- Kwale ELC No. 144 of 2021
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal to review its own decisions, exercised with circumspection (as recognised in Benjoh Amalgamated Limited v Kenya Commercial Bank Limited)
Relief refused
#Substitution of the €61,000 cash deposit with alternative security (title deed for Kwale/Matuga/xxx and certificates of Treasury Bills)
The orders sought to be reviewed are clear and unambiguous and the applicant established no mistake, error or other basis for review; inability to raise the amount is not a ground for review
Clarification of the applicable exchange rate
The orders of 27th September 2024 are clear and unambiguous; no mistake or error requiring correction was shown
Costs
The application dated 17th October 2024 is dismissed with costs to the respondent.
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.
It is a general principle of law that a Court after passing Judgment, becomes functus oficio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law.
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).
The application dated 17th October 2024 is devoid of merit. It is hereby dismissed with costs to the respondent.
Issues in the judgment
#The judgment refers to the applicant with both feminine and masculine pronouns, and the applicant's counsel is named as 'Mr. Nicholas Abidha'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NMS v TS (Civil Application E076 of 2024) [2025] KECA 774 (KLR)", Case Analysis (2025). Application dated 17th October 2024 (arising from Kwale ELC No. 144 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/774/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.