Hussein Unshur Mohamed v Yusuf Abdi Adan & 3 others
The bottom line
#Kenya's Court of Appeal ruled a judge cannot overturn another judge's orders, striking out a second attempt to redo a concluded Kshs.320 million share valuation.
What this practically means
#Executive summary
#Key legal issues
#Whether a judge of concurrent jurisdiction may overturn the decision of a coordinate judge
No. Only appellate or supervisory jurisdiction empowers a judge to reverse orders; a High Court judge's Article 165(6) supervisory powers do not extend to fellow judges, and purported 'corrective' orders are a nullity.
The court found Njoki Mwangi, J. had made diametrically opposite findings to Mabeya, J. on the same issues - the signed status of the valuation report, the validity of the consent appointing RSM, access to audited accounts, and alleged influence over the valuer. Judges never second-guess their peers; doing so is impermissible overreach and judicial adventurism attracting appellate rebuke, rendering the orders null and void ab initio.
Whether the application dated 15.9.22 was a prohibited second review and res judicata
Yes. The application was a second review barred by Order 45 Rule 6 and its grounds - the unsigned/unsealed report, alleged influence, denial of access to accounts - had been fully agitated and determined by Mabeya, J., making them res judicata.
Mabeya, J. had previously made orders on review on 1.10.21 and had considered and rejected the very objections now raised when adopting the RSM report on 3.6.22. The distinction between the two applications was 'a mere phantom and a chimera'. Relitigating concluded issues with cosmetic changes is what res judicata exists to prevent; the application was in every sense an appeal in disguise.
Whether the High Court was functus officio
Yes. Mabeya, J.'s orders of 3.6.22 had been perfected and fully implemented by 29.7.22 - the purchase price deposited, shares transferred - leaving nothing for the court to adjudicate.
Once a court renders a decision its role is spent. Having found the matters res judicata, the court had no jurisdiction. Section 63(e) CPA did not donate jurisdiction; neither Telkom Kenya nor Bellevue was authority for assuming a non-existent jurisdiction to revisit exhaustively determined matters. Jurisdiction is everything and cannot be conferred by consent or waiver.
Legal principles established
#- A High Court judge has no jurisdiction to sit on appeal over, modify, reverse or 'correct' the orders of a judge of co-ordinate jurisdiction; supervisory powers under Article 165(6) do not extend to fellow judges, and any such orders are null and void ab initio.
- Order 45 Rule 6 of the Civil Procedure Rules expressly bars entertaining an application to review an order made on a review; a second review application is incompetent.
- Res judicata bars re-agitation of matters directly and substantially in issue and finally decided in a former suit between the same parties, including matters which might and ought to have been raised earlier (Explanation 4 to section 7 of the Civil Procedure Act).
- Once a court has rendered a final decision and its orders have been perfected and fully implemented, the court is functus officio and has no competence to reopen the matter.
- Jurisdiction cannot be conferred by consent, acquiescence or waiver; participation in proceedings before a court lacking jurisdiction does not cure the defect.
Court orders
#- 1.The ruling and order of Njoki Mwangi, J. dated 25.4.23 is set aside
- 2.An order is substituted that the 1st respondent's motion dated 15.9.22 be struck out with costs
- 3.The 1st respondent shall bear the costs of this appeal
- On appeal from
- High Court of Kenya, Commercial and Tax Division at Nairobi
- Civil Suit No. 100 of 2016
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court (Article 164 of the Constitution); the appeal challenged the ruling of Njoki Mwangi, J. dated 25.4.23
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Unshur Mohamed v Yusuf Abdi Adan & 3 others", Case Analysis (2026). Civil Appeal (memorandum of appeal dated 24.8.23). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/527/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.