Ondiek & another v National Bank of Kenya Ltd & another (Civil Application E036 of 2024) [2025] KECA 859 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a request to invalidate a 1999 High Court judgment because the applicants filed an application without first filing a notice of appeal.
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, on a stand-alone application not anchored on a notice of appeal or appeal, to pronounce on the validity of a High Court judgment in Eldoret HCCC No. 115 of 1999
- 2.Whether the Court's residual jurisdiction to review or reopen its own decisions was available to the applicants
- 3.Whether the application constituted an abuse of the process of the court
Key legal issues
#Jurisdiction of the Court of Appeal over a stand-alone application
The Court's jurisdiction is invoked only by the filing of a notice of appeal; the applicants' application, not anchored on any notice of appeal, could not sustain a challenge to the High Court judgment and must collapse.
Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act confine the Court to hearing appeals from the High Court in cases where an appeal lies under written law. The Court reiterated precedent that a notice of appeal is the launching pad of its jurisdiction. The application under Articles 10, 20(3), 47, 50 and 159 and other provisions did not donate jurisdiction, and the inherent power under Rule 1(2) of the Court of Appeal Rules is exercisable only regarding an appeal properly before the Court.
Residual review jurisdiction and abuse of process
Even if the Court's residual jurisdiction to review its own decisions were engaged, invoking it repeatedly on the same grounds is an abuse of process; the validity of the impugned judgment had already been conclusively determined.
The Court traced its prior decisions (Civil Appeal No. 182 of 2011, review rulings of 2017, 2021 and 2022) in which the same issues, including the unsigned and undated judgment that was overturned on appeal with a retrial ordered, had been determined. The applicants had discontinued the retrial suit. Relying on Supreme Court authority, the Court held that repeated litigation on identical grounds constitutes abuse of the court's process.
Legal principles established
#- The Court of Appeal is seized of a matter only upon filing of a notice of appeal; a stand-alone application not anchored on a notice of appeal cannot found its jurisdiction to review or pronounce on a High Court decision
- The Court of Appeal's residual jurisdiction to review or reopen its own decision is exceptional, to be exercised with circumspection, and cannot be used to attack a High Court judgment in the absence of an appeal
- It is an abuse of the Court's process to seek review of an earlier decision on the same or substantially similar grounds, or grounds that ought to have been raised earlier
Court orders
#- 1.The application dated 24th June 2024 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act; the application itself was a stand-alone application not anchored on any notice of appeal, which the Court held was fatal to its jurisdiction
Relief refused
#All 41 reliefs sought, including declarations on the validity of the judgment by Nambuye, J in Eldoret HCCC No. 115 of 1999
The Court lacks jurisdiction absent a notice of appeal or an appeal; the provisions invoked do not donate the power sought; and the application is an abuse of process
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.
An application not based on a notice of appeal sits on quicksand and must collapse.
Consequently, we find no merit in this application which we hereby dismiss with costs.
It is clear therefore, that the provisions relied upon by the applicants do not donate the power to this Court to interrogate the judgement in Eldoret HCCC No 115 of 1999
The inherent power exercisable under the above provision, in our view, is only exercisable with regard to an appeal that is properly before the Court.
Issues in the judgment
#Internal inconsistency in the dates of prior review decisions: paragraph 6 refers to a decision of 16th December 2023 while paragraph 10 refers to a decision of 16th December 2022 on the application dated 8th October 2021
Paragraph 10 contains a typographical error in the judgment date, 'the judgment dated 29th October 205' rather than 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondiek & another v National Bank of Kenya Ltd & another (Civil Application E036 of 2024) [2025] KECA 859 (KLR)", Case Analysis (2025). Notice of Motion dated 24th June 2024 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/859/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.