Otundo & 5 others v Creek Marketing and Development Ltd (Civil Appeal (Application) E132 of 2022) [2026] KECA 1384 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to reopen its final judgment, confirming it will review concluded cases only in exceptional situations like fraud or bias.
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 judgment of 12th April 2024 contains confusion or internal inconsistency regarding the order on mesne profits warranting review or clarification
- 2.Whether the Court is functus officio as regards the appeal and, if so, whether it may exercise a residual jurisdiction to review its own final judgment in the circumstances of this application
Key legal issues
#Whether the Court could review or clarify its final judgment of 12th April 2024 on the mesne profits order
The application for review fails; the judgment is clear and the conditions attached to possession and mesne profits were not satisfied so as to entitle the applicants to mesne profits from 21st July 2012.
The Court explained that paragraph 88(j) entitled the applicants to vacant possession and mesne profits only upon registration of the Transfer and Charge, full payment of the purchase price and late payment interest. Since late payment interest of Kshs. 6,540,005 remained unpaid, the applicants' claim to mesne profits was premature. The alleged confusion in paragraphs 83, 84 and 88(j) did not disclose clerical error, fraud, bias or injustice engaging the slip rule or the residual review jurisdiction.
The scope of the Court of Appeal's residual jurisdiction to review its own final judgments
The Court confirms that it may revisit its own final judgments only in strictly defined and exceptional circumstances, pursuant to sections 3 and 3A of the Appellate Jurisdiction Act and rule 35 of the Court of Appeal Rules, 2022, balancing the finality principle against the justice principle.
Relying on Odinga v IEBC on functus officio, Synergy Industrial Credit v Cape Holdings on the slip rule, and Benjoh Amalgamated on residual jurisdiction, the Court reiterated that finality of litigation serves the public interest, while the justice principle permits reopening only in cases of fraud, bias or other injustice. The jurisdiction must be circumscribed to prevent endless re-litigation of concluded matters.
Legal principles established
#- Once a court delivers its judgment it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law; a court of final resort retains only a residual jurisdiction to reopen a decided matter in cases of fraud, bias, or other injustice, exercised in strictly limited circumstances.
- The jurisdiction to review a final judgment must be circumscribed so as to avert endless re-litigation and a flood of applications challenging the correctness of decisions.
Court orders
#- 1.The applicants' Notice of Motion dated 8th May 2024 is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Sections 3 and 3A of the Appellate Jurisdiction Act and rule 35 of the Court of Appeal Rules, 2022 (residual jurisdiction to review own judgments)
Relief refused
#Review or clarification of the judgment of 12th April 2024, including the claim to mesne profits at Kshs. 80,000 per month from 21st July 2022 until delivery of possession
The perceived confusion does not engage the slip rule nor disclose fraud, bias, or other injustice justifying exercise of the residual review jurisdiction
Costs
The application was dismissed with costs to the 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.
Accordingly, the applicants’ Notice of Motion dated 8th May 2024 fails and is hereby dismissed with costs to the respondent.
where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same
once a court delivers its judgment, it becomes functus oficio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice.
Put simply, the applicants were entitled to vacant possession only upon payment of the amount aforesaid and, if vacant possession was thereafter withheld, to mesne profits for the period possession is withheld.
Issues in the judgment
#The judgment states it was 'DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026', a date seemingly in the future relative to a May 2024 application; the year 2026 may be a typographical error in the certified copy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otundo & 5 others v Creek Marketing and Development Ltd (Civil Appeal (Application) E132 of 2022) [2026] KECA 1384 (KLR)", Case Analysis (2026). Notice of Motion dated 8th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1384/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.