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Court of AppealDismissedNotice of Motion dated 24th June 2024 (Court of Appeal, Nakuru)

Ondiek & another v National Bank of Kenya Ltd & another (Civil Application E036 of 2024) [2025] KECA 859 (KLR)

Court of Appeal of Kenya
16 May 2025
3,749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 24th June 2024, Thomas Owen Ondiek and Eddah Amakobe Ingutia sought 41 reliefs on 25 grounds, principally that the Court of Appeal declare invalid the judgment of Nambuye, J (as she then was) in Eldoret HCCC No. 115 of 1999, allegedly delivered while she was under suspension and unsigned and undated. The respondents, National Bank of Kenya and Central Bank of Kenya, opposed, contending the issues were res judicata, having been determined in prior decisions of the Court, and that the applicants had abused the court process. In a ruling delivered at Nakuru on 16th May 2025, a bench of Mativo, Gachoka and Odunga, JJA dismissed the application. The Court held that its jurisdiction under Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act is invoked only by the filing of a notice of appeal; a stand-alone application not anchored on any notice of appeal 'sits on quicksand and must collapse.' None of the provisions invoked - Articles 10, 20(3), 47, 50 and 159, the Appellate Jurisdiction Act, the Court of Appeal Rules, the Civil Procedure Act or Order 45 of the Civil Procedure Rules - donated power to interrogate the High Court judgment absent an appeal. The Court also confirmed its residual jurisdiction to review or reopen its own decisions is exceptional, and held that re-litigating the same grounds amounted to an abuse of process, particularly since the applicants had withdrawn the retrial suit ordered after the impugned judgment was overturned. The application was dismissed with costs.

Questions the Court framed

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

  1. 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. 2.Whether the Court's residual jurisdiction to review or reopen its own decisions was available to the applicants
  3. 3.Whether the application constituted an abuse of the process of the court

Key legal issues

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01

Jurisdiction of the Court of Appeal over a stand-alone application

Holding

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.

Reasoning

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.

p. 4
02

Residual review jurisdiction and abuse of process

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The application dated 24th June 2024 is dismissed with costs

The bench

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

majority
majority
majority
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

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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

p. 6

Costs

The application is 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.

An application not based on a notice of appeal sits on quicksand and must collapse.
p. 4Invocation of the Court of Appeal's jurisdiction
Consequently, we find no merit in this application which we hereby dismiss with costs.
p. 7Final orders
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
p. 6No jurisdiction under the provisions invoked
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.
p. 6Limits of inherent power under Rule 1(2) of the Court of Appeal Rules

Issues in the judgment

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minor

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

minor

Paragraph 10 contains a typographical error in the judgment date, 'the judgment dated 29th October 205' rather than 2015

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, "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.