Dim Properties Limited v Lamu Breeze Investments Limited & 6 others
The bottom line
#The Court of Appeal refused to reopen its own final judgment, confirming that losing parties must appeal to the Supreme Court rather than seek 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 applicant has met the threshold to warrant the Court's review of its Judgment dated and delivered on 11th October 2024
Key legal issues
#Whether the Court of Appeal has jurisdiction to review its own judgment and on what terms
The Court has only residual, exceptional review jurisdiction, exercised sparingly and not where the grievance is appealable to the Supreme Court.
The Court traced its jurisdiction to Article 164(3) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act, holding it cannot be enlarged beyond what is conferred. Relying on Benjoh Amalgamated, Niels Bruel, Cape Holdings and Nguruman, it held the residual review jurisdiction is exceptional, exercised cautiously and only in non-appealable cases. The applicant's complaint about the bona fide purchaser finding was a matter for Supreme Court appeal.
Whether functus officio bars the review application
Yes; the appeal was heard and determined with finality on 11th October 2024, and only minor clerical or arithmetic mistakes under Section 99 of the Civil Procedure Act are correctable.
The Court applied the functus officio doctrine as approved by the Supreme Court in Raila Odinga v IEBC, quoting Pretorius: a decision-maker may exercise adjudicative powers only once in relation to the same matter, and such a decision cannot be reviewed or varied by the decision-maker. The Court is barred from correcting substantive decisions; an aggrieved party's remedy is an appeal under Article 163(4) of the Constitution.
Whether the alleged new evidence of payment of Kshs.13,500,000 constitutes an error apparent on the face of the record warranting review
No; the sufficiency of evidence on the purchase price was one of the issues determined in the impugned judgment and is a matter for Supreme Court appeal, not review.
The applicant's complaint was that the finding that it was not a bona fide purchaser rested on absence of evidence of payment. The Court held that because this was one of the issues that fell for determination in the impugned judgment, it is a matter subject to appeal in the Supreme Court, and the Court cannot sit on appeal on its own decision.
Legal principles established
#- The Court of Appeal's residual jurisdiction to review its own decisions is exceptional, to be exercised cautiously, with circumspection, in the rarest of cases and on a case-by-case basis, and only where decisions are not appealable to the Supreme Court.
- Once the Court of Appeal pronounces itself on a matter, the functus officio doctrine precludes it from re-opening it, save for minor clerical or arithmetic mistakes under Section 99 of the Civil Procedure Act.
- Allegations that the Court misapprehended or misapplied the law are grounds for appeal, not for invocation of the residual review jurisdiction.
Court orders
#- 1.The applicant's Motion dated 4th November 2024 is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Malindi
- ELC No. 224 of 2014
- Jurisdiction invoked
- Article 164(1) and 164(3) of the Constitution; Section 3(1) of the Appellate Jurisdiction Act, Cap 9; Rule 59(2) of the Court of Appeal Rules, 2022
Relief refused
#Review, variation and/or rescission of the Court's judgment of 11th October 2024 and substitution with an order allowing the appeal
The complaint goes to a matter that fell for determination in the impugned judgment and is subject to appeal to the Supreme Court; the Court cannot sit on appeal on its own decision
Costs of the application in the cause
Application dismissed with costs to the 1st respondent instead
Costs
The applicant's Motion dated 4th November 2024 is dismissed with costs to the 1st 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 clear that this Court's residual jurisdiction to review its decisions has to be exercised cautiously, with circumspection, on the rarest of the cases and on a case-by- case basis.
The doctrine of functus officio envisages that, once a Court pronounces itself on a maatter, there is no room for it to wiggle into re-opening it.
Entertaining applications for review of judgments of this Court on the allegation that the Court has misinterpreted or misapplied the law would be the shortest and surest way to create an illegitimate tier of appeals against the decisions of the Court.
The upshot is that the applicant's Motion dated 4th November 2024 is hereby dismissed with costs to the 1st respondent.
Issues in the judgment
#Duplicate/erroneous neutral citation: EACC v KBC is cited as (2025) KECA 873 (KLR), nearly identical to Benjoh Amalgamated's (2014) KECA 872 (KLR).
Typographical error in the judgment text ('maatter') within the functus officio passage.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dim Properties Limited v Lamu Breeze Investments Limited & 6 others", Case Analysis (2025). Civil Appeal (Application) E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2241/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.