Joseph Motari Mosigisi (the Then District Commissioner, Rongai District) v Kimunai Ole Kimeiwa & 8 others
The bottom line
#Kenya's Court of Appeal confirmed that once a judge delivers a final judgment, they cannot reopen it—you must appeal, not ask the same judge to change their mind.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant could, on appeal, urge the issue of sufficient reason to justify review of the judgment
The issue was rejected because the application before the trial court was not a review application; it was not brought under Section 80 of the Civil Procedure Act or Order 45 of the Civil Procedure Rules, and new issues cannot be raised on appeal.
The Court read the application and found it was anchored on Article 50 of the Constitution, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 9 Rule 9(a) of the Civil Procedure Rules, seeking a declaration on who should satisfy the decree and stay of execution, not review. Appellate jurisdiction is confined to issues presented in the lower court; raising new matters constitutes unfair surprise, and no relief can be granted on a case not founded on the pleadings.
Whether the trial judge was functus officio after determining that the applicant was properly sued in his personal capacity
Yes. Having pronounced itself conclusively on the propriety of suing the applicant personally, the trial court was functus officio and could not be invited to sit on appeal over its own decision.
A court that has given a final decision on the merits is deprived of all judicial functions over the issues it determined. For functus officio to arise there must be a valid, final and conclusive judgment, decree or order, upon which res judicata comes into existence. The trial judge had made findings of law and fact on the applicant's personal liability; the proper path was an appeal to the Court of Appeal, not a stealth attempt to have the same judge change his mind.
Whether the ruling dismissing the appellant's application should be overturned
The Court found no basis to fault the learned Judge and dismissed the appeal.
The trial judge had firmly rejected the invitation to re-determine issues he had conclusively decided, correctly holding that review jurisdiction is radically circumscribed and that litigation must come to an end. The appellant's grievance lay in an appeal, which is what was now before the Court of Appeal, and the appeal itself lacked merit.
Legal principles established
#- A court that has delivered a final, valid and determinative decision on the merits becomes functus officio as to the issues decided and has no jurisdiction to recall its decision; the remedy of an aggrieved party is an appeal, not review or re-litigation in the same court.
- A party cannot introduce new issues, arguments or evidence on appeal that were not raised, canvassed or pleaded before the trial court.
- A public officer who acts outside the remit of his office, maliciously and to the injury of citizens, loses the personal protection and immunity of his public office and may be sued personally.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st to 6th respondents
- On appeal from
- High Court of Kenya at Nakuru
- Constitutional Petition No. 38 of 2014
- Jurisdiction invoked
- First appeal / appellate jurisdiction of the Court of Appeal against a ruling of the High Court (specific constitutional or statutory provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Motari Mosigisi (the Then District Commissioner, Rongai District) v Kimunai Ole Kimeiwa & 8 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/577/eng@2026-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.