Nguruman Limited v Shompole Group Ranch & Another [2014][ eKLR [2014] KECA 358 (KLR)

Nguruman Limited v Shompole Group Ranch & Another [2014][ eKLR [2014] KECA 358 (KLR)

IN THE COURT OF APPEAL

(CORAM: NAMBUYE, MWILU, MUSINGA, KIAGE & J. MOHAMMED - JJ.A)

CIVIL APPLICATION NO. NAI 90 OF 2013 (UR 60/2013)

BETWEEN

NGURUMAN LIMITED………………………………….......................................APPLICANT

AND

SHOMPOLE GROUP RANCH……………………………………………....1ST RESPONDENT

OL KIRAMATIAN GROUP RANCH…………….……………………………2ND RESPONDENT

(Application for Review or alternatively of correction of the orders given by the Court of Appeal (Koome, Gatembu Kairu & Otieno-Odek JJA) Dated 19th April, 2013

in

Nairobi Civil Appl. No. Nai 18 of 2012 (UR 13/2012)

****************************************

RULING OF NAMBUYE, JA

1.  The litigation before us has its roots in two suits. In Kericho HCCC No. 65 of 2009 the applicant herein, Nguruman Limited, was named as the plaintiff while the respondents, Shompole Group Ranch, Moshila Ole Mataiyan, Nkoitiko ole Napiriya and Turanaole Kumari, were named as the 1st, 2nd, 3rd and 4th defendants, whereas in  Kericho HCCC Ol Kiramatian Group Ranch, Mointi Lemarora Nkoyoko , Albert Ole Lenana and Mugesa Ole Lenana, were named as the 1st, 2nd, 3rd and 4th defendants respectively. Various reliefs were sought against both sets of (defendants) respondents.

2.  The two suits were consolidated and heard together, giving rise to the Judgment of Ang’awa, J. dated and delivered at Kericho on the 2nd day of December, 2009, whereby the learned Judge made orders, inter alia, that the Judgment was in respect of original file number HCCC 145 of 2001 and HCCC 146 of 2001 then Kericho HCCC 65 of 2009 and 66 of 2009 as consolidated; an order of eviction was to issue directed at both sets of (defendants) respondents and their members, agents and or servants directing them to vacate the suit premises with immediate effect; a permanent inJunction to restrain the (defendants) respondents, their servants , agents or otherwise from continuing or repeating their trespass on the applicant’s Land; nominal damages  of Kshs. 5 million; the preliminary obJection was dismissed; costs of the suit to the applicants and interest on the nominal damages.

3.  No notice of appeal was filed against that decision. Costs of the suit were taxed at Kshs.8, 066,335.00 and a certificate of taxation dated the 2nd  day of June, 2009 issued. There followed the extraction of the decree dated 19th day of April, 2010 and filed in Court on 27th day of April, 2010. There after the  Execution process was set in motion.

4. On 11th August, 2010 M/s Ochieng, Onyango, Kibet and Ohaga presented an application by way of notice of motion dated the 2nd day of August, 2010 on behalf of the 1st respondent in HCCC No. 65 of 2009, Shompole Group Ranch, in which among other orders, they sought stay of execution of the Judgment of Ang’awa, J. of

2nd December, 2009, the resulting decree and all other proceedings emanating therefrom; stay of an impending sale, review and setting aside of the orders of Ang’awa, J., the setting aside and nullification of the sale by public auction then impending, other reliefs and costs. The application was opposed, heard on its merits and resulted in a ruling delivered by G.B.M. Kariuki. J, (as he then was) of 9th day of January, 2012 in which the learned Judge dismissed the application for review and at the same time had it struck out.

5.   The respondents were aggrieved by that dismissal order A notice of appeal dated the 20th  day of January, 2012 was filed followed by the presentation of Civil application number Nai 18 of 2012 brought under  Rule 1(2) and 5(2) (b) of the Court of Appeal Rules 2010. The substantive prayers sought are reproduced hereunder as:-

“(1). That this Honourable Court be pleased to stay the execution of the Judgment and decree of the Honourable Lady Justice Mary Ang’awa delivered on 2nd  December 2009 in Kericho High Court Civil case  No.  65  of  2009-  Nguruman  Limited  versus  Shompole  Group Ranch, Moshila Ole Mataiyan, Nkoitiko Ole Napiriya and Turana Ole Kimari Consolidated with Kericho High Court civil case No. 66 of 2009- Nguruman Limited versus Ol Kiramatian Group Ranch Limited, Mointi Lemarora Nkoyokoy, Albert Kuseyo Kipainoi Mugesa Lenana, upon the striking out and dismissal of the applicants application for review by Justice GBM Kariuki on 19th  January, 2012 pending the filing hearing and determination of the intended appeal from the said orders.

(2) That the applicant be at liberty to apply for such further orders and/or Directions as the Honourable Court may deem Just and expedient to grant”.

6.  The application was opposed by a notice of preliminary obJection dated the 15th day of March, 2012 and filed on the 20th day of March, 2012. It reads:

“(1) There is no positive and enforceable order, other than an order for costs which is capable of execution by the Respondent arising from the ruling delivered and orders made by the Honourable Mr. Justice G.B.M. Kariuki on 19th  January, 2012. Therefore there is noting for this Court to stay, enforce or restrain by an inJunction under the notice of motion application dated 27th January, 2012.

(2). The High Court never ordered the parties to do anything or refrain from doing anything or to pay any sum under the Ruling delivered on 19th January, 2012. Therefore the order made by the Honourable Mr. Justice G.B.M. Kariuki on 19th  January 2012 striking out an order dismissing the applicants’ notice of motion application dated 2nd August, 2010, is not capable of execution by the respondent against the applicants.
(3). The order sought by the applicants in the notice of motion application dated 27th January, 2012 does not relate to what the Honourable Mr. Justice G.B.M. Kariuki decided on 19th January, 2012. The order sought by the applicants in the said notice of motion application is extraneous to an order for stay of execution. The said order does not relate to what the Honourable Mr.  Justice G.B.M. Kariuki either ordered on  19th   January 2012 to be done or not to be done.

(4). The orders sought are not obtainable.

(5). The Court lacks Jurisdiction under Rule 5(2) (b) of the Court of Appeal Rules to entertain the notice of motion application dated 27th day of January, 2012.

(6). The application has been brought and maintained contrary to the principle in John N. Liboyi versus the Board of Governors. St. John College, Nairobi civil application No. Nai 1138 of 2009 (UR 92/2009) unreported.

(7). The said notice of motion application is misconceived, bad in law, incurably defective.

(8). The notice of motion application has been brought contrary to the principle in Western College of Arts and Applied Science versus Oranga C [1976] KLR63. Therefore the said notice of motion application ought to be struck out”

7.  The merit disposal of the application resulted in the ruling of Koome, Gatembu Kairu and Odek, JJA delivered on the 19th day of April, 2013. The portion of the ruling relevant   to   the   rival   arguments   herein   is   that   found   at   paragraphs   30, 31,32,33,34,35,36,37 and 38. For purposes of clarity, these are reproduced herein as here under:-

“30 There is, however, a valid Notice of Appeal in regard to the orders of 19th  January, 2012. Is there an arguable appeal from the decision of the High Court given on 19th January, 2012?. We are persuaded the grounds raised in the draft memorandum of Appeal against the orders of 19th January, 2012 cannot be said to be frivolous. There is for instance the question whether the High Court was right in declining to review the order for “nominal damages” of Kshs.5, 000,000.00. We have also considered that the application dated 2nd  August, 2010 that culminated in the orders given by the High Court on 19th  January, 2012 included the prayer that: ‘The Honourable Court be pleased to review and set aside the order of Lady Justice Mary Ang’awa delivered on 2nd December, 2009.”

31. If the applicants were successful in that application that sought a review of the Judgment given on 2nd  December, 2009, it would have resulted in at least an order being made to set a side the order of eviction or of the payment of nominal damages in the sum of Kshs. 5 million.

32. The application dated 2nd August, 2010 was dismissed on the grounds inter alia that there was no “error, apparent on the face” of the Judgment of Ang’awa J. The application was also struck out for reasons that the firm of Onyago Otieno Kibet and Ohaga were not properly on record.

33. In our view the outcome of the application for review, if it was successful was intended to set aside orders of eviction and the nominal damages. We think that, in the circumstance of this case, the applicants should have an opportunity, bearing in mind the over arching   obJective   in   the   administration   of   Justice   is   to   do substantive Justice, to be heard on the substantive appeal from the decision of the High Court given on 19th January, 2012.

34.  Considering  that  it  is  contended  that  the  applicants  (sic) property is under threat of sale in execution of the decree supports over 40,000 people. we think that the second limb for the grant of relief under rule 5(2) (b) of the rules of this Court are satisfied. There is a notification for sale of the applican’s parcel of land in execution of the decree which shows the decretal sum to be recovered is Kshs.18,  731,335.00  together  with  auctioneers’  charges  of  Kshs. 10,071,000.00. The sale of the applican’ts property would entail the displacement of over 40,000 people who are said to derive their livelihood from the suit land and they would perhaps be rendered destitute.

35. This Court has power, under rule 5(2) (b) of the rules of this Court, to make three types of orders. The Court can order a stay of execution, an inJunction or a stay of any further proceedings. We think the particular circumstances of this case warrant the grant of an order for stay of proceedings in the High Court pending the hearing and determination of the appeal from the decision of the High Court given on 19th January, 2012.

36. For the avoidance of doubt, this order shall not in any way affect the order of permanent inJunction given on 2nd  December, 2009 restraining the applicants from interfering or trespassing on the respondents parcel of land known as Narok/Nguruman/Kamarora/1 until the determination of the appeal.

37. The order for stay of proceedings is subJect to the applicants filing and serving (if they have not already done so) within sixty (60) days from the date of delivery of this ruling failing which the order for stay given herein will stand automatically discharged.

38. Costs of this application shall follow the appeal in any event”

8. The current applicants were aggrieved by that ruling. They have moved to this same forum and presented an application by way of Notice of Motion dated the 25th  day of April, 2013, brought under Section 3(2) of the Court of Appeal Act No.9 Laws of Kenya and Rule 42 of the Court of Appeal Rules, 2010 and all enabling provisions of law including Article 159  (2)  of  the  Constitution of  Kenya. The  application invokes this Court’s Jurisdiction to review paragraphs 30, 31,32,33,34 and 35 of the aforesaid ruling; allow the preliminary obJection dated 20th March, 2012 and then dismiss the notice of

motion dated 27th January, 2012. Alternatively that this Court do correct the order made on the 19th  April, 2013 in Nairobi civil application No. Nai 18 of 2012 (UR 13/2012) by setting aside the order given for the stay of proceedings contained in paragraph 35 of the ruling and other such consequential, further, or other orders as it may deem Just and lastly, that costs be provided for.

9.  The application is grounded on the grounds in the body of the application and the contents of a supporting affidavit of Moses Loonta Sati Ololo Wuaya of 21st day of April, 2013. The respondents have opposed the application on the basis of the grounds of opposition dated the 19th day of June, 2013 and filed on the 20th day of June, 2013.

10. When the motion came up for hearing on the 15th July, 2013 directions were given that the review application be heard by the same panel which gave the orders sought to be reviewed and set aside. Instead, the President of the Court of Appeal in his wisdom found it fit to constitute a panel of five Judges to hear and determine the application, hence this ruling.

11. In his oral submission to Court, Mr. Mohamed Nyaoga, learned counsel for the applicant, outlined the background information culminating in the application under review already set out above. Mr. Nyaoga then added that there was no notice of appeal filed against the Judgment of Ang’awa, J. of 2nd  December, 2009; there was no Jurisdiction in this Court to entertain the application of 27th January, 2012 in the manner framed; the applicant was Justified in raising a preliminary obJection to that application on the ground that this Court had no Jurisdiction to entertain that application; the Court of itself acknowledged this fact and instead of downing its tools and dismissing the application,  it  did     an  about  turn  and  erroneously  granted  an  order  of  stay  of proceedings in the High Court.

12. It is Mr. Nyaoga’s further argument that the issue of stay of proceedings was not one of the issues framed for discussion; the learned Judges therefore  issued an order which had not been sought by the respondent;   which order should not have been issued in the absence of the Court being properly vested with Jurisdiction; the Court therefore  made orders rules of natural Justice; an inJustice was therefore meted out against the applicant which should be reversed by this Court.

13. Mr. Ahmednasir, Senior Counsel leading Mr. Mohamed Nyaoga   in addition, reiterated that this Court has residual powers to correct the error committed by itself in the ruling complained of; the learned Judges had no Jurisdiction to grant the orders of stay granted because these had not been prayed for; or argued. The matter had been heard to finality and Judgment given. There were therefore no further proceedings pending capable of being stayed. Three, since the application was for review, all that the learned Judge (G.B.M. Kariuki, J.) did was to give a negative order, that is,  a dismissal order and or a striking out order incapable of being  stayed. Four, the Jurisdiction of the Court has been properly and proceduraly invoked under Section 3(2) of the Appellate Jurisdiction Act as it is a matter incidental to this Court’s main mandate donated by Section 3 of the Act.

14. Mr. Masika, learned counsel for the respondents, relying on the grounds of opposition filed herein. Urged the Court to dismiss the applicant’s application. It was Mr. Masika’s argument that the learned Judges committed no error as they simply took cognizance of the fact that the respondents were the party aggrieved by the Judgment of Ang’awa, J. dated 2nd December, 2009;  such an aggrieved party was entitled to  seek the remedy of review; there were execution proceedings pending which would have been forestalled had the review application succeeded; learned Judges could not have ignored the prevailing surrounding circumstances and were entitled to note that the respondents had been aggrieved by the failure to grant the review order; since a notice of appeal had in fact been lodged and served against the order refusing review; the learned   Judges   were   obligated   to   ensure   that   the   intended   appeal   was   not compromised and  lastly that no inJustice was suffered by the respondent  as a result of the orders sought to be reversed.

15. On  Jurisdiction, Mr. Masika  argued that rule 35 of the Court of Appeal Rules only donates to the Court power to correct purely clerical errors or a simple mistakes. This Court’s inherent Jurisdiction cannot also be invoked where it is likely to result in an inJustice to one party who has already complied with the orders sought to be reversed.

16.  In  response  to  the  respondents’  submission,  Mr.  Ahmednasir,  Senior  Counsel, reiterated their earlier stand that the learned   Judges recognized the failure to file a notice of appeal against Ang’awa, J’s Judgment and as such no stay  orders could have been issued with regard to that Judgment; although the Court was categorical that this Judgment had not been stayed, a proper construction of the intended purpose of the ultimate result of the impugned ruling  was that it in effect stayed the Judgment of Ang’awa J  of  2nd   day  of  December, 2009;  the  orders  of  G.B.M.  Kariuki,  J.    were incapable of being stayed and lastly that this Court has power to address an inJustice which has been meted out to the applicant.

17. The applicant relied on the decision in the case of Board of Governors Moi High School Kabarak & another versus Malcolm Bell Supreme Court Petitions Nos. 6 and 7 of 2013 (unreported) for  the proposition that a Court’s Jurisdiction flows from either the Constitution or Legislation or both. As such a Court cannot arrogate to itself Jurisdiction exceeding that which is conferred upon it by Law. It must operate within the Constitutional limits; and lastly  the inherent power of the Court is meant to prevent its process from being misused in such a way as to diminish its capability to arrive at a Just decision of the dispute. The case of  Equity Bank Limited versus West Link MBO Limited [2013] eKLR was cited for the proposition that once a notice of appeal is filed an appeal is deemed to be in existence as rule 2 defines an appeal as including an intended appeal. The decision in the case of  Macharia M. Sande versus Kenya Co-operative Creameries Limited Mombasa CA No. 154 of 1992 (UR) and Nairobi City Council versus Thabiti Enterprises Limited [1995-1998] 2EA231 was cited for the proposition, inter alia, that  a Judge has no power to decide an issue not raised before him through the pleadings of which parties are made aware. The case of  National Cereals & Produce Board versus Errad Suppliers & General Contractors Limited, Nairobi civil Application No. Nai 48 of 2012 (UR) 33 of 2012   was cited for the proposition that no stay order is capable of being issued by a Court of law against a negative order (such as a dismissal or a striking out order).

18. The respondents on the other hand relied on the decision of Rafiki Enterprises Limited versus Kings Way Tyres & Automart Limited, Civil Application No. Nai 375  of 1995 (UR) for the proposition that once the Court of Appeal has determined an appeal, it has no residual Jurisdiction to reopen the appeal. The decision in  Jasbir Singh Rai and 2 others versus Tarlochan Singh Rai and 4 others Nairobi Civil Appeal No. 307 of 2003 (154/2003 UR) for the proposition that the Court of Appeal has no Jurisdiction to re- open, re-hear and then recall its earlier decision and substitute it with another. Lastly, the decision in the case of Patrick Gathenya versus Esther NJoki Rurigi and anothe [2008] eKLR for the proposition that the public policy principle that there must be an end to litigation  triumphs over the equally weighty principle that Justice must be done and be seen to be done in each case that comes before the courts for determination; (ii) the power of the Court of Appeal to re-open and re-hear an appeal is no where to be found in the Constitution; or the Appellate Jurisdiction Act; (iii) for the Court of Appeal to be properly vested with Jurisdiction, there has to be in place a pending appeal or an intended appeal.

19. Our Jurisdiction to intervene in this matter has  been invoked under Sections 3(2), 3A of the Appellate Jurisdiction Act Cap 9 laws of Kenya, Rule 1 (2), 35 (2) 42 of the Court of Appeal Rules, 2010 and also Article 159 (2) (d) of the Constitution of Kenya, 2010. The power donated to the Court to revisit its own concluded matter since 1920 was limited to correction of mistakes and errors limited to giving effect to the intention of the Judgment.

This position changed with the introduction of Section 3A of the Act enshrining  the overriding obJective principles of the Court by Act No.6 of 2009 as an additional tool in this Court’s dispensation of Justice.

20. It is now trite and as will be demonstrated later on in this ruling that the exercise of this Court’s mandate is usually set in motion by either the lodging of a notice of appeal thereby signifying a party’s intention to appeal or alternatively by the filing of the appeal itself (See the case of Safaricom Limited versus Ocean View Beach Hotel Limited and 2 others Civil Application No. 327 of 2009 (UR7). In the matter before us neither a notice of appeal nor an application for preservative orders were presented in respect to the Judgment of Ang’awa, J. of 2nd December, 2009. Instead, an application for review and setting aside of the said Judgment was presented but declined by G.B.M. Kariuki, J., prompting the lodging of a notice of appeal and an application for preservative orders against the order declining the request for review and setting aside. It is the resulting ruling on the request for preservative orders which has aggrieved the applicants, allegedly for purporting to stay a negative order and secondly, for erroneously and unprocedurally staying the Judgment of Ang’awa, J. and thereby causing an inJustice on to the applicants, sought to be vindicated by this ruling.

21. The main vehicle for accessing redress for this grievance as cited by the applicant is none other than Rule 35(1) (2) of this Court’s rules. It is titled “correction of errors.” It provides:-

(1) A clerical or arithmetical mistake in any Judgment of the Court or any error arising therein from an accidental slip or omission may at any time, whether before or after the Judgment has been embodied in an order, be corrected by the Court either of its own motion or on the application of an interested person so as to give effect to what the intention of the Court was when the Judgment was given.

(2) An order of the Court may at any time be corrected by the Court either of its own motion or on the application of any interested person if it does not correspond  with the Judgment it supports or where the Judgment has been corrected under sub rule (1) with the Judgment as so corrected.”

22. The mandate thus donated by Rule 35 is for this Court to correct “any clerical or arithmetical mistake or any error arising therein from an accidental slip or omission”. The target is either a Judgment or an order. What we are dealing with herein is a ruling which gave rise to orders sought to be impugned. I have no doubt that it is covered by this rule as it forms the basis of a pronouncement of the Court on equal footing as a Judgment or an order as the case may be, as defined in Section 2, of the Appellate Jurisdiction  Act,  (supra)  which  defines  “a  Judgment”  as  including  decree,  order, sentence and decision. It therefore follows that  in order for rule 35 to apply, there has to be demonstration of existence of the following: (i) an acknowledgement that there is either a clerical, arithmetical mistake or an error which has arisen in the ruling; (ii) the alleged clerical Arithmetical or error identified arose as a result of an accidental slip or omission; and (iii) its rectification is necessary in order to give effect to the intention of the Court in the said Judgment, order or ruling as the case may be.

23. The alleged offending paragraphs in the learned Judges’ ruling are paragraphs 30, 31,32,33,34,35,36,37  and  38.  The  findings  of  the  learned  trial  Judges  in  those paragraphs, in a summary are as follows: One, the intended appeal as against the orders of the Superior Court of 19th April, 2012 of G.B.M. Kariuki, J. was not frivolous. Two, had the application giving rise to the orders of 19th  April, 2012 succeeded, it would have reviewed and set aside the orders of eviction and an award of Kshs. five million nominal damages forming the core of the Judgment of Ang’awa, J. of 2nd  December, 2009.

Three, bearing in mind that the overriding obJective, in the administration of Justice is to do substantive Justice, it was prudent on the part of the Court to give the respondents an opportunity to be heard on the appeal from the decision of the High Court given on

19th January, 2012. Four, the learned Judges appreciated the respondents’ concerns that the property under threat of sale  in execution of the decree supports over 40,000 people; and for this reason, the learned Judges opined that the second limb for the grant of the relief under Rule  5(2) (b) of the rules of this Court had been satisfied;  the sale of the respondents’ property would entail the displacement of over 40,000 people who are said to derive their livelihood from the suit land and they would perhaps be rendered destitute. Five, the Court had power under rule 5(2) (b) of the Rules of this Court either to stay execution, grant an inJunctive relief or stay any further proceedings. Six, the particular circumstances of the case warranted the granting of an order for stay of further proceedings in the High Court pending the hearing and determination of the appeal from the decision of the High Court given on 19th January, 2012. Seven, the order for stay of proceedings in the High Court would not affect the order of permanent inJunction given on 2nd  December, 2009, restraining the applicants from interfering or trespassing on the Respondent’s parcel of land known as Narok/Nguruman/Kamarora/1 until the determination of the appeal. Eight, the order of stay of proceedings was subJect to the respondent (if they had not already done so) filing and serving the record of appeal within sixty (60) days of that ruling.

24. The core issue for our determination is whether the applicant has brought itself within the ambit of the prerequisite set by the parameters in rule 35(1) (2) of this Courts’ Rules. There has been no submission by either side as regards existence of any  clerical  or  arithmetical  errors.  Therefore  none  of  these  exist.  Next  is  to determine firstly the intention of the Court in the ruling sought to be impugned followed by a determination as to whether any error or omission was made by the Court to defeat that intention which needs rectification in order to give effect to that intention. A reading of the findings of the Court set out above tend to portray that the learned trial Judges came to the conclusion that the respondent’s intended appeal against the orders of G.B.M. Kariuki, J. of 19th April, 2012 was not frivolous, considering that though, the application had been dismissed on account of failure to demonstrate existence of any error apparent on the face of the Judgment of Ang’awa, J. of 2nd December, 2009, none-the-less the application was struck out on account of it having been presented by counsel who had not properly placed himself on the record. The learned Judges went further to note that, there were peculiar circumstances of the case which they could not lose sight of; these peculiar circumstances were that there were 40,000 people who live and derive a living from the very land which was threatened with not only an auction but also an eviction of the 40,000 or so people, that if the impending eviction was not forestalled, the 40,000  people  would  have  been  rendered destitute;  there  was  a  need  to  lean towards the rendering of substantive Justice as opposed to adherence to strict rules of  procedure; the  substantive Justice demanded that there  should be  a  stay  of further proceedings in the High Court; but which stay would not affect the order of permanent inJunction contained in the Judgment of Ang’awa, J. of 2nd  December, 2009.

25. It is evidently clear from the record that, in making the above findings, the learned trial Judges were not oblivious of the presence of the negative order of dismissal and or striking out in the orders of 19th  April, 2012 as well as lack of both a notice of appeal  and  an  intended  appeal  as  against  the  Judgment  of  Ang’awa,  J.  of  2nd December, 2009. The learned Judges were alive to the presence of both and that is why they elected to opt for the grant of an order for a stay of proceedings instead of a stay of execution.

26. The question is whether by electing to make the orders made, they committed an error which had gone to negate their real intention in the said ruling, which error or omission calls for rectification in order to give effect to that intention. The learned Judges appear to have been aware of the implications and or repercussions of their failure to intervene especially on the special circumstances of the case before them highlighted above. They therefore chose to exercise their Judicial discretion in the manner done solely to guarantee substantive Justice to the 40,000 people living on the suit property until the parties’ rights or otherwise had been crystallized by the intended appeal arising from the orders of G.B.M. Kariuki, J. In refusing to review and set aside the Judgment of Ang’awa, J. This may very well be a wrong exercise of Judicial discretion according to the applicants. However, a reversal of this in reliance on Rule 35 of this Courts’ rules will defeat the clear intentions of the trial Judges in the said ruling. Such a move would be against the clear directive in rule 35 of this Court’s Rules that interference with a decision of this Court by itself is limited to giving effect to the intention of the ruling. Anything beyond that is outside the ambit of that rule.

27. The  problem as  regards this  Court’s Jurisdiction to  re-open and  re-determine a matter previously concluded by it has kept on poping up every now and then notwithstanding efforts made not only by this Court but also its predecessor, the Court of Appeal for Eastern Africa, to find a lasting solution to it. It is on the same footing that we have now been invited to re-address this same issue. In the case of Valla Bhdas Karsandas Ranica versus Mansukhlal JivraJ and others [1965] EA700, the central proposition in it was that “a slip order will only be made where the Court is fully satisfied that it is giving effect to the intention of the Court at the time when Judgment was given or in the case of a matter which was overlooked where it is satisfied beyond doubt as to the order which it would have made had the matter been brought to its attention.” In  Lakhamshi Brothers Limited versus R. RaJa & Sons [1966]  EA313,  at  page  314  paragraph  E-F,  Sir  Charles  Newbold,  P.  made  the following observation:-

“Indeed there has been a multitude of decisions by this Court on what is known generally as the slip rule, in which the inherent Jurisdiction of the Court to recall a Judgment in order to give effect to its manifest intention has been held to exist. The  circumstances however,   of the exercise of any such Jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to Judgment to give effect to the intention of the Court when it gave its Judgment or to give effect to what clearly would have been the intention of the Court had the matter not inadvertently been omitted. I would here refer to the words of this Court given in the Rainga case (2)  [1965] E.A. at P. 703) as follows:

“A Court will, of course, only apply the slip rule where it is fully satisfied that it is giving effect to the intention of the Court at the time when Judgment was given or, in the case of a matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it would have made had the matter been brought to its attention.”

These are the circumstances in which this Court will exercise its Jurisdiction and recall its Judgment, that is, only in order to give effect to its intention or to give effect to what clearly would have been its intention had there not been an omission in relation to the particular matter.

But this application, and the two or three others to which I have referred, go far beyond that. It asks, as I have said, this Court in the same proceedings to sit in Judgment on its own previous Judgment. There is a principle which is of the very greatest importance in the administration  of  Justice  and  that  principle  is  this:  It  is  in  the interest of all persons that there should be an end of litigation.

In Somanis versus Shirinkhanu (No 2) [1971] EA79, Spry Ag. P’. (as he then was) had this to say:-

It has repeatedly been held by this Court that we have no power to review.

………….

As regards Sections 3(2), I think this can only apply up to the point where an appeal is decided and determined. I do not consider that it confers on this Court the power to review which the High Court enJoys by statute. On the more general ground, this Court is not a Court of unlimited Jurisdiction. It is a creation of statute and enJoys only such Jurisdiction as is conferred on it by statute. It has no inherent Jurisdiction.

….

That Rule exists to enable the Court to correct a mistake so as to give effect to what was the intention of the Court at the time when the mistake was made.

……..

I wish that we had the power to recall and review our Judgment but I am satisfied that we have no such power”

Law, Ag. V.P. (as he then was) on the other hand had this to say:-

“The only circumstances in which this Court will alter the text of a Judgment which it has pronounced is where it is necessary to do so to give effect to the intention of the Court at the time when Judgment was given……..

28. In Isaacs versus Robertson [1984] 3ALLER 140 ,the Privy Council was categorical that it had Jurisdiction to reverse its decision, if the circumstances warrant e.g where there has been a breach of the rules of natural Justice. In  Tailor and Another versus Lawrence and another [2003] QB 52,8, the Court of Appeal of England ruled, inter alia, that it had an implicit Jurisdiction to correct wrong decisions by re-opening proceedings which it had already heard and determined if it was clearly established that a significant inJustice had probably occurred and   there was no alternative effective remedy. This was subJect to the Court considering the effect of re-opening the appeal on others, the extend to which the complaining party was the author of his own misfortune and lastly that the move would ensure public confidence in the administration of Justice.

29. In the Tanzanian case of Transport Equipment Limited versus Valambhia [1994] 1LRC 114,    after reviewing a wide range of decisions both within and from other Jurisdictions,  Constitutional and statutory provisions of law governing the donation of the mandate of the Court for Appeal of Tanzania made observations, inter alia, that while there was nothing in the Constitution of the United Republic of Tanzania which expressly empowered the Court of Appeal for Tanzania  to review or alter its own decisions, nonetheless  drawing  inspiration from  both  the provisions on the inherent Jurisdiction of the Court and  the decision of the Court of Appeal for Eastern Africa in  Somani versus Shirinkhanu (No.2) [1971] EA 79,  the learned  Chief Justice Nyalali CJ (as he then was) went on to hold inter alia that:

The Court of Appeal for Eastern Africa had recognized that, it had limited inherent Jurisdiction to review its own decision in circumstances where a party was wrongly deprived of the opportunity to be heard or where, for reasons of fraud or otherwise, the decision of that Court was a nullity. In addition the Court of Appeal of Tanzania also enJoyed inherent Jurisdiction to review its decisions where such decisions have been on a manifest error on the face of the record resulting in miscarriage of Justice.

30. Turning to this Court’s own recent pronouncement on the issue, in  Rafiki Enterprises Limited versus Kings Way Tyres & Automart Limited (Supra), after scrutinizing the Jurisdictional provisions of  this  Court,  both  under  the  retired  Constitution and  the Appellate Jurisdiction Act (Supra), the Court observed, inter alia, thus:-

“Sections 3 gives power to the Court of Appeal only in its Appellate capacity. Similarly the inherent power conferred by Rule 1(3) can only be exercised within and in the course of hearing of an appeal and of course it is now trite law that a right of appeal must be expressly be given by law and such a right cannot even be implied or inferred… in Musiara Limited versus Ntimama [2005] IEA 317, at page 323 paragraph C-F there is observation that:-

“Though we agree with Mr. Gautama that it is the duty of the Court to see that no inJustice is occasioned to a litigant, at the same time we reiterate that, it is to be remembered that a Court has no inherent power to do that which is prohibited by law.

……….

At the moment, this Court is the final Court on the land. Where an issue had

been determined by a decision of the Court, that decision should indefinitely determine the issue as between those who were party to the litigation. The reason for this general approach is that, public policy demands that the outcome of litigation should be final and that litigation should not unnecessarily be prolonged. This is the reason why limits have been placed on the rights of citizens to open or re-open disputes. The law also recognizes that any determination of disputable fact may be imperfect well knowing that human beings err.” On the basis of the above reasoning and after reviewing both English and East African decisions on the subJect, this Court set out the position in law then as follows:-

“The Court of Appeal has always refused invitation, to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made. To depart from this rule would be a most dangerous course in that, it would be open to all and sundry to challenge the correctness of the decision of this Court on the basis of fresh arguments brought up long after the Judgment or decision was delivered or made.

31. In the case of  Jasbir Singh Rai & 3 others versus Tatlorchan Singh Rai & 4 others (supra),  a bench of five (5) eminent Judges of this Court was constituted to address the issue. Three of these namely Omolo, Bosire and GithinJi, JJA wrote opinions, while Waki and Devrell JJA concurred. In summary, the observations of Omolo JA were as follows.

On  matters  of  general  public  policy,  the  learned  Judge  opined  that  the  cardinal principles that under pin the Jurisdiction of this Court as the then final Court in this land were two namely; one, that there ought to and must be an end to litigation; two, that Justice must be done and be seen to have been done in each case that comes before courts for determination. On the role of the Judge as a human being, that it should be recognized that Judges are human beings who are by nature fallible. As such, a decision of a court may well be shown to be wrong either on the basis of existing law or on the basis of  some newly  discovered facts which had  it  been  available at  the  time  the decision was made, might well have made the decision to go the other way. On the general Jurisdictional mandate of the court of Appeal in Kenya, the learned Judge observed that this Court as was then mandated only had Jurisdiction to hear and determine appeals from the High Court. It did not enJoy a mandate similar to that donated to the High Court vide Section 80 of the Civil Procedure Act, that permits the High Court to revisit its own previously concluded decision, re-open and re-determine. The Judge appreciated that the Court has Jurisdiction to deal with other matters incidental to the determination of appeals but to the learned Judge, by “incidental” was meant matters that were incidental to its appellate mandate, which is the hearing and determination of a pending appeal. The learned Judge after revisiting Sections 77(9) and 64 of the retired Constitution, Section 3 of the Appellate Jurisdiction Act (supra), and rule 1(3) of the Court of Appeal Rules which enshrined the inherent Jurisdiction of the Court came to the conclusion that all these did not donate a power to this Court to re- open and re-hear a finally determined matter.

32. On the local Jurisdictional case law sampled by the learned Judge, observations made were as follows. On the Lakhamshi Brothers case (Supra) that the issue of re- opening and re-hearing an appeal did not arise; in the Somani’s case (Supra) that this Court accepted the proposition that the Court of Appeal is a creature of statute and only enJoys that Jurisdiction which had been granted by statute, in the Rafiki   Enterprises case (Supra) the decision was wrong as concerned application of the   inherent Jurisdiction  of  the  Court,  which  had  to  be  exercised  bearing  in  mind  the  general mandate of the Court (namely in the course of hearing and determination of an appeal); the  Musiara case (Supra), was based on rule 56(2) (which is the equivalent of Rule 57(1) (2) of this Court’s rules. To the Judge this rule merely dealt with rescision of orders made by a single Judge or by the whole Court with regard to the extension of time for doing  any  act  otherwise  than  to  a  specific  date  of  time  or  if  the  order  was  one permitting the doing of some act without specifying the date by which the act was to be done. To the learned Judge, no one could contend that rule 56(2) could ever Justify the re-opening and re-hearing of a concluded appeal, nor can rule 1(3) (enshrining the inherent Jurisdiction of the Court) Justify such a conclusion.

33. Turning to the English case law, on the Exparte Pinochet Ugarte case (Supra), the learned Judge observed that in this case the House of Lords was categorical that it (the House of Lords) as the final Court in that Jurisdiction (in England) had vested itself with the power to correct any   inJustice, whereas in the case of Taylor versus Lawrence (Supra) the Court of Appeal for England  which was not a final Court in its Jurisdiction had ruled that it had residual power to re-open and re-hear its own concluded matter also had back up Jurisdictional   provisions permitting it to re-open and re-hear a concluded appeal which was not the case with this Court. These foreign decisions were dismissed as being merely persuasive.

33. On the basis of the above observations, the learned Judge concluded thus:-

“I have said enough, I believe, to show that when one considers our statutory position and the authorities based on the statutes, this Court still has no Jurisdiction to re-open, re-hear and then recall its earlier decision and substitute it with another. Nor do I subscribe to the view expressed by Mr. Oraro that a party who feels that the Court by its decision has inJured his or her fundamental right has the right to go to the High Court so that  that Court can, in effect reverse a decision of this Court made on an appeal from a decision emanating from the very self same High Court. It is to be remembered that there is an appeal from the decision made by the High Court pursuant to the provisions of the Constitution and in my view it would be an absurd situation to keep moving from the Court of Appeal back to the High Court and then back to the Court of Appeal again. I have always thought the law is no friend of absurdities.

In the end, I have myself come to the conclusion that, this litigation ended on 30th  September, 2002, when this Court gave its Judgment. I recognize and appreciate that in some instances, this position may create an inJustice to a particular litigant and like Acting President Spry, I must also wish that we had power to recall and review our Judgments. I am however not saying that I wish we had the power so as to re-open and review the Judgment of this particular appeal i.e Civil Appeal No. 63 of 2001. I am wishing for that power in a generalized way. But the Court does not have that power. Perhaps I can at least hope that parliament may in its own good time one day intervene in the matter. Until such time as such intervention would have come, this motion cannot proceed.”

34. Bosire, JA, in the same Rai case stated that Section 64 established the Court of appeal with Jurisdiction and power in relation to appeals from the High Court. By the words “As may be conferred by law”; the learned Judge understood these to mean that the law which conferred Jurisdiction on this Court is the Appellate Jurisdiction Act (Supra). As for the Rules made thereunder, that these do not provide for review of decisions of the Court relating to appeals except pursuant to the provisals to Rules 99(1) and 55(3) of this Court’s Rules dealing with dismissal of appeals and applications respectifully for want of prosecution. On the basis of the above observations, the learned Judge delivered himself thus:

“I wish however, to state that the Court of Appeal is the final Court in Kenya. The appellate process ends there. Whatever decisions which emanate from the Court, except those I have stated above, are final and binding on the parties concerned. This application appears to challenge the doctrine of finality. This is the doctrine which enables the Court to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down. It is a doctrine or principle based on public interest. As I stated earlier, there are instances where the public interest principles are in conflict and the Court must balance one aspect against another and decide which one supercedes the other, of course depending on the facts and circumstances of each case. The conflict here is that, the applicants feel they were not given a fair hearing by an impartial Court. The principle of finality regards that litigation should come to an end. On the basis of the existing rules of practice the applicants were heard by this Court and a Judgment pronounced”

35. GithinJi, JA. in the same Rai case kicked off his observations by setting out the Constitutional and statutory Jurisdictional provisions of this Court namely Section 64(1) and 77(9) of the retired Constitution, Section 3(1) of the Appellate Jurisdiction Act (supra), Section 3(1) of the Judicature Act Cap 8  of the laws of Kenya, and Rule 1(3) of this Courts Rules; drew inspiration from the decision of this Court in  Anarita Karimi NJeru versus the Republic (No.2) [1979] KLR 162 for the proposition that the establishment and Jurisdiction of this Court and its predecessor had remained the same since 1902; this Court is a creature of statute and can only exercise such Jurisdiction as conferred on it by statue;  and it cannot assume Jurisdiction which has not been conferred on it by statute. GithinJi, JA, like Omolo and Bosire, JJA, revisited and  reviewed  decisions  of  this  Court  in  the  Rafiki  Enterprises  Limited  (supra), Musiara Limited (supra) and Chris Mahinda t/a Nyeri Trade Centre versus Kenya Power & Lighting Co. Limited Civil Application No. Nai 174 of 2005 (UR).   On the Rafiki Enterprises case the following observation was made:-

“The application was dismissed by the Court holding inter alia that it had no Jurisdiction to recall and nullify a Judgment already delivered. The Court observed in that case that the law only conferred Jurisdiction on the Court to hear appeals from the High Court which Jurisdiction can only be exercised during the hearing of the appeal and that the inherent powers conferred by Rule 1(3) can only be exercised within and in the course of hearing of an appeal more importantly they reiterated   that a right of appeal must expressly be given by law  and that such a right cannot even be implied or inferred”

……

To the learned Judge, it was clear then that Rafiki Enterprises Limited case was not only  consistent with the Appellate Jurisdiction Act and previous similar statutes as conferring Jurisdiction on the predecessor of this Court but also consistent with previous decisions of the predecessor of this Court such as  Lakhamshi Brothers Limited versus RaJ & Sons (Supra) and Somanis versus Shirinkhanu (No.2) (supra) ”  Turning to the Musiara  case (supra) the learned Judge made observation that; the statement of law in the Musiara case that this Court had Jurisdiction to re-open a concluded appeal was indeed obiter. As for the holding in the Chris Mahinda case (supra), that the application was dismissed on the ground that, there were no exceptional circumstances such as  bias to warrant rescission of  the  order.  On  the  basis  of  the  above  comparison, the  learned Judge concluded that it was beyond contention that there is no statute or rules of this Court conferring Jurisdiction on the Court of Appeal to re-open a finalized appeal. As for the decisions of the English Courts namely Republic and Taylor versus Lawrence (supra) among others followed in the Musiara case (supra)   these were dismissed as merely persuasive; were Judge made laws; and lastly   this Court did not in the Musiara case subJect them to appropriate tests before adoption as law in this country.  On the basis of the above observations, the learned Judge concluded thus:-

“In my humble view, it is for the parliament to decide as a matter of policy whether residual Jurisdiction in addition to the statutory Jurisdiction should be conferred on the Court of Appeal. It would be wrong to clothe the Court of Appeal with Jurisdiction imported from another Jurisdiction without the approval of the legislature”

36. In the case of Patrick Gathenya   versus Esther NJoki Rurigi and another (supra) there is observation that the disposal of the matter therein was put on hold to await the decision of a five  Judge bench of this Court in  Jasbir Sing Rai & 3 others versus Taylor Chan Singh Rai & 4 others (supra), which was constituted to resolve an apparent conflict between the decision in the Rafiki Enterprises case on the one hand and the Musiara and Mahida cases on the other hand as  regard this Court’s Jurisdiction to re-open, re-hear and re-determine a matter previously concluded by it. The learned Judges noted that in the Rafiki case the Court had been categorical that the Court had no Jurisdiction, but in  the  Musiara and Mahida cases dicta Matter had tended to suggest that the Court had Jurisdiction in certain circumstances; that the Rai case was to define the extend of these circumstances but then had ended up dismissing the Dicta matter in the Musiara and Mahida cases and upheld the reasoning and holding in the Rafiki case. On the basis of the above observations and the reasoning that followed that, were largely on all fours with the reasoning of the learned Judges in the Rai case, Jurisdiction was declined and the motion dismissed.

37. I may be tempted to ask as to what was this court saying in the above lengthy survey of the previous pronouncements on the issue at hand. To me, it has tended to show that the issue at hand is now an age old problem. It keeps on recurring every now and then. Despite handing out the well considered opinions by the five (5) learned Judges, the issue still refuses to go away. I am also part of a five (5) Judge bench which has once more been invited to also have a bite at it. The lessons learned from the above survey when considered in the light of the current provisions of both the Constitutional and statutory provision donating Jurisdiction to this Court will go along way to enable me determine whether time has now come to turn on a new leaf for this Court; “that Parliament has spoken” as regards the statutory Jurisdictional base as donated by the Appellate Jurisdiction Act (supra) and “that the consumers of Justice” (the people of Kenya) have spoken to me that I  should go the way the applicant has asked us to go.

38. A summary of these will do no harm.  In the decision in the Somani’s  (supra) and the Lakhamshis cases (supra)   the reason the Court declined     Jurisdiction was because there were no statutory provisions providing an avenue for  accessing such a relief. By “statutory”, it would also mean and include an appropriate rule providing that avenue. Also notable is that, the Court was categorical that it did not even have “inherent power” as a possible enabling avenue but acknowledged possession of the slip rule powers which to the Court were limited to interference with its finally concluded decisions for purposes of giving effect to the intention of the Court in handing down the particular Judgment or decision only. This is the power which is traceable to the current rule 35(1) (2) of this Court’s Rules. It is also noted that issue of Constitutional empowerment were not interrogated in the said two earlier decisions.

39. With regard to the Tanzanian decision of Transport Equipment Limited, (supra) the Tanzanian Court of Appeal acknowledged that it prima facie possessed power through the slip rule provisions and procedures limited to the correction of errors and omissions in the decision for purposes of giving effect to that decision for purposes of making such a decision effective in its intend and purport. It   went further to state that, right from the era of its predecessor the Court of Appeal for Eastern Africa, the inherent power of the Court had been recognized beyond the slip rule, though under limited circumstances. Drawing inspiration from the decision in the  Somani  versus  Shirinkhanu  (No.2)  [1971]  EA79,  it    stated  that  it  enJoyed inherent  Jurisdiction  to  review  its  decisions  where  such  decisions  display  an apparent manifest error on the face of the record resulting in miscarriage of Justice.

40. Turning  to  this  Court’s  own  recent  pronouncements on  the  issue  in  the  Rafiki Enterprises Limited (supra) this Court declined invitation to revisit its concluded decision because the statutory provisions relied upon as the enabling provisions did not support that view. In the Musiara Limited case, Jurisdiction was also declined for the reasons that, the Court of Appeal as was then the final Court on the land, where an issue had been determined by a decision of the Court that decision should definitely determine the issue as between those who were party to the litigation. Public policy also demanded that the outcome of litigation should be final, which is the  reason why limits have been placed on the right of citizens to open or re-open disputes; that the law recognizes that any determination of disputable facts may be imperfect well knowing that to err is human;  the Court only recognizes invitation to review, vary or rescind its own decisions where it is necessary to give effect to its intention at the time the decision was made; to depart from adherence to the slip rule provisions as the only instances in which this Court can revisit its past decisions would be a most dangerous course in that, it would be open to all and sundry to challenge the correctness of the decision of this Court on the basis of fresh argument brought up long after the Judgment or decision was delivered or made.

41. In the Chris Mahinda t/a Nyeri Trade Centre case (supra), Jurisdiction was declined because there were no exceptional circumstances necessitating intervention such as failure to hear a party resulting in that party suffering an inJustice. whereas in the Jasbir Singh Rai & others case (supra)  Jurisdiction was declined for the reason that such a move would be contrary to the two cardinal guiding principles which require that litigation of whatever nature undertaken in a court of law must come to an end, and secondly that Justice should not only be done but should be seen to be done; this Court as the then final Court of any form of litigation in this land was obligated to protect the rule against absurdies likely to be transgressed if it were to  allow re- opening, and reviewing of its finally determined issues; the Constitutional provisions namely Sections 77(9) and 64 of the retired Constitution had not been interrogated in the Rafiki, Musiara and Chris Mahinda cases (supra);  the  decision in  Musiara case purporting to suggest existence of a power in this Court to re-open and re-hear a matter previously finally determined by it was of no consequence as it had been based on orbiter matter; the English authorities on the basis of which the  Musiara case had been decided   were merely persuasive and could not be used to over rule local decisions which had crystallized the position in law on the issue. Lastly that this Court like its predecessor wished it had the power to revisit, re-open and re-hear its previously finally determined decisions but until parliament says so, there was no way the Court could vest itself with that Jurisdiction.

42. In the Patrick Gathenya case (supra) Jurisdiction was declined because, the motion in it had been premised on the basis of the Dicta in the Mahinda case on the one hand, and on the other hand, the position in law as regards issues raised therein had been crystallized by the five (5) Judge bench in the Rai case.

43. It is against the above background that the applicant has invited us to grant him the relief sought, while the respondent on the other hand has invited us to decline granting the relief sought. In deciding one way or the other, I need to  retrace my footsteps back in relation to the avenues used by litigants in the above previous decisions, determine the status of these as at the time they were used as avenues for the relief sought but declined, then determine their current position and then state why these are feasible avenues or not and give reasons either way.

44. On dismissals for want of prosecution, it was correctly stated by Bosire, JA in the Rai case that these were accessible vide rules 55 and 99 of this Court’s Rules, currently Rules 56 and 102. To earn a relief under these rules a litigant is required to show sufficient reason or cause for non attendance. An order for dismissal for want of prosecution cannot fall into the category of orders granted in finality in any matter as the merit aspect of the particular matter affected is never interrogated before the Court makes such an order.   Such orders are therefore usually made purely on technicalities.

45. As for orders under the slip rule, it is evident that, all the decisions assessed herein acknowledged not only the existence of this power but its availability at the disposal of this Court and then went further to stress that this power is a must possession for this Court save that it is limited in its scope, in that it exists only for purposes of this Court to invoke it with the aim of giving effect to its decision. This was cited by the applicant as a possible avenue vide Rule 35 of this Courts Rules. Its application parameters have already been assessed above and a conclusion reached that it cannot be invoked as an avenue for re-opening, re-hearing and –re-determining a concluded matter.

46. Turning to the power to rescind its own orders, I note from the heading of the application that the relevant rule was not one of those cited. It was formerly rule 56 but currently rule 57 of this Court’s Rules. Though not cited by the applicant, I find it prudent to interrogate it as the Court is exploring all possible avenues through which the relief sought can possibly be granted. I can access this provision through the general phrase “and all other enabling provisions of the law”. It provides:

“57(1) An order made on an application heard by a single Judge may be varied or rescinded by that Judge or in the absence of that Judge by any other Judge or by the Court on the application of any person affected thereby, if-

(a) The order was one extending the time for doing any act, otherwise

than to a specific date, or

(b) The  order  was  one  permitting  the  doing  of  some  act,  without specifying the date by which the act was to be done and the person on  whose  application  the  order  was  made  has  failed  to  show

reasonable diligence in the matter.

(2) An order made on an application to the Court may similarly be

varied or rescinded by the Court”

48. This provision in its former state as Rule 56 was cited as an enabling provision in the Musiara case  (supra)  but  reJected. In  giving reasons for  its  reJection as  a  possible avenue, both Omolo and GithinJi, JJA were categorical that it only related to rescission of orders made by a single Judge by the full bench;   the said orders were limited to orders for extention of time for doing something under the rules and no more. Rule 57 (1) clearly donates power to this Court to revisit the orders made by a single Judge pursuant to that rule. It is evidently clear that these are reversible either by the same single Judge, any other Judge or by the full Court, the only caveat being that these orders must be those relating to an extention of time on the one hand, and those relating to a general mandate to a litigant to perform a certain task without specifying the date by which the task should be accomplished. None of these two situations apply to the scenario herein. Subrule (2) of this rule is framed in a generalized manner.   It reads:-

(2) An order made in an application to the Court may similarly be

varied or rescinded by the court”

49. The apparent general application of subrule (2) of rule 56 (now 57) to any other orders made by the Court in applications other than those presented under the said rule

56 was reJected by this Court in the Musiara, Mahinda and Rai cases. The Court simply stated that “there was nothing in sub rule 2 to suggest that it donated such a power”. The Court however did not go further to explain as to why the power donated under sub rule (2) of the same rule to revisit such orders by the same single Judge, any other Judge or the  full Court, could be given additional powers in sub rule (2). To me had the Rules Committee intended to confine the operation of sub rule 2 to applications presented under subrule (1) only, it would have gone further to indicate that the operation of subrule (2) was also limited to any other application presented with regard to matters mentioned in sub rule 1. For example, the framing could have read like this:-

“The order made on any other application made to the Court under subrule (1) the order may similarly be reviewed or rescinded by the court”

In the absence of such a restriction being placed on the operation of sub rule (2), I opine that the court could have explored this avenue as a possible avenue to revisit, re-open, re-hear and re-determine its previous decisions.

50. Rule 57(1) clearly donates power to this Court to revisit the orders made by a single Judge pursuant to that rule. These are reversible either by the same Judge, any other Judge or by the full Court, the only caveat as stated above being that, these orders must be those relating to an extention of time on the one hand and those relating to a general mandate to a litigant to perform a certain task without specifying the date by which the task should be accomplished. The learned Judges when reJecting the applicability of this rule as an avenue did not say that such orders made by a single Judge are routine orders. They arise from reasoned rulings by the particular Judge as to why the relief of extention of time or otherwise has either been granted or declined. They are in effect merit decisions. It therefore follows that, if a merit decision on extention of  time  or  otherwise  to  perform  a  task  under  this  Courts  Rules  can  be revisited, re-opened, re-determined either by the same or other Judges or the full Court, then why not any other merit decision of the Court.

51. Turning to the inherent power of the Court, Rule 1(2) of this Courts Rules which enshrines this power was cited as one of the enabling provisions to access the relief sought. It provides:-

Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of Justice or to prevent abuse of the process of the Court”.

It is now trite that the inherent power of the Court exists in the Court’s Jurisdiction as a safety valve to enable the Court to make such orders as may be necessary for the ends of Justice or to prevent the abuse of the power of the Court. It cannot be cited where there is an appropriate Section, order or rule to cover the relief sought. (WanJau versus Muraya [1983] KLR276.) See also the case of  Total Kenya Limited versus Kenya Revenue Authority [2013] eKLR for the proposition that existence of a specific relief under the rules does not preclude the Court in specific circumstances from making any other orders under its inherent Jurisdiction for ends of Justice to be met to both parties. The case of Dickson Muricho Muriuki versus Timothy Kagendo Muriuki and 6 others [2013] ekLR for the proposition that the inherent power of the Court is the authority possessed by a Court, implicitly without it, being derived from the Constitution or statute; it is the unwritten power of the Court without which the Court is unable to function with Justice and good faith. The exercise of the Courts’ inherent Jurisdiction is closely linked to the court’s exercise of its Judicial  discretion, generally which is to the effect that it is unfettered but has to be exercised Judicially, that is to say, on sound reason,  rather  than  whim,  caprice  or  sympathy.  (Githiaka  versus  Nduriri  [2004] 2KLR67).

52. From the local decisions assessed above, this Court was aware of the possible invocation of its inherent power enshrined in rule 1(2) above formerly 1(3) as a possible access avenue.  But  this  Court,  like  in  the  case  of  rule  56(57)  flatly reJected this avenue by simply stating that there is nothing in it to suggest the existence of such a power. When confronted with the invocation of this same inherent power in the Transport Equipment Limited case (supra) the Court of Appeal for Tanzania and the House of Lords in the Pinochet case, these two Courts (the House of Lords and the Court of Appeal for Tanzania) acknowledged that this was a possible avenue. Whereas this Court dismissed these as being merely persuasive and as such could not be used to oust local decisions on the subJect. From the content of the cases assessed above on the applicability of this power, it is clear that the power is available to a Court of law of Superior Jurisdiction to operate as a safety valve to avail Justice to litigants where no known provisions of law or rule can be invoked to avail such a relief, to ensure ends of Justice is met to parties who come seeking it from a court of law, and to prevent abuse of the Court process. In the absence of any convincing reasons as to why the inherent power was not available to this Court as an access avenue, find it prudent to state that this has always been a possible access avenue, to this Court with latitude for the Court to define the confines within which it should be applied to grant the relief under review.
 

53. Section 3(2) of the Act provides:-

“3(2) for all purposes of and incidental to the hearing and determination of any appeal in the exercise of Jurisdiction conferred by this Act the Court of Appeal shall have in addition to any other power, authority and Jurisdiction conferred by this Act, the power authority and Jurisdiction vested in the High Court.

In Patrick Gathenya versus Esther NJoki Rurigi & Another (supra) , this Court stated clearly that this Court’s Jurisdiction under Section 3(2) is accessed vide existence of either an already filed appeal or an intended appeal. In  Safaricom Limited versus Ocean View Beach Hotel Limited and 2 others civil application No. 327 of 2009 (UR) Omolo JA had this to say:-

“At the state of determining an application under Rule 5(2) (b) there may be no actual appeal. Where there is no actual appeal already lodged, there must be an intention to appeal which is manifested by lodging of a notice of appeal. If there is no notice of appeal lodged, one cannot get an order under Rule 5(2) (b) because as a I have already pointed out the Jurisdiction of the Court of Appeal is limited to hearing of appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgment of the notice of appeal, the Court of Appeal would have no business to mediate in the decision of the High Court.”

As mentioned earlier on, herein, no notice of appeal or stay order was sought against the Judgment of Ang’awa, J. However there was a notice of appeal and an application for stay against the orders of G.B.M. Kariuki, J. On an application under Rule

5(2) (b) of this Court’s Rules. A three Judge Bench of this Court found the appeal arising from the orders of G.B.M. Kariuki, J, not frivolous, found existence of special circumstances therein as concerned the 40,000 or so persons who were affected by that litigation and issued the orders complained of, alleged by the applicant to have been issued without Jurisdiction.

54. In the year 2009 Act No.6 of 2009 introduced an additional aid tool to this Court in the discharge of its mandate; the “overriding obJective principle.” This is enshrined in Section 3A of the Act. It provides:-

 

“3A (1) the overriding obJective of this Act and the rules made thereunder is to facilitate the Just, expedition, proportionate and affordable resolution of the appeals governed by this Act”

Case law on the applicability of this principle now a bound, to offer guidance. See the case of City Chemist (NBI) Mohamed Kasabuli suing for and on behalf of the  Estate  of Halima wa Mukoya Kasabuli versus Orient Commercial Bank Limited Civil Application No. Nai 302 of 2008 (UR199/2008) for the proposition that the principle confers on the Court considerable latitude in the exercise of its discretion in the interpretation of the law and rules made thereunder; the case of  Kariuki Network Limited & another versus Dally & Figgis Advocates Civil Application No. Nai 293 for the proposition that the overriding obJective principle is to enable the Court achieve fair, Just, speedy, proportionate, time and cost saving disposal of cases before it; but does not operate to uproot established principles and procedures, but to embolden the Court to be guided by a broad sense of Justice and fairness; and lastly the case of  Hunter Trading Company Limited versus ECF/011 Kenya Limited Civil Application No. Nai 6 of 2010 (UR3/2010) for the proposition that, the overriding obJective principle is intended to not only energize the process of the Court but also ensure that interpretation of any of the provisions of the Act and the Rules made thereunder are “02” compliant.

 

 

55. From the above set of case law principles, it is clear that this Court has now been given a wide latitude in the exercise of its discretion in the interpretation of the law and rules made thereunder; intended to enable the Court achieve a fair and Just disposal of cases. It is meant to reenergize the process of the Court ensuring that the Court’s interpretation of the law and the Rules made thereunder are “o2”  compliant.  The  tool  introduced  under  Section  3A  of  the  Act  was  not available as at the time the decisions in which this Court’s Jurisdiction was declined were made. It therefore follows that; in the exercise of its mandate in the determination of the issue at hand it cannot ignore the application of the overriding obJective principles to that determination. In doing so, the case law on the application of this principle enJoins the Court not to lose sight of the established principles and procedures i.e those dealing with the principle of finality among others but to embolden the court to be guided by a broad sense of Justice and fairness.

56. The  mandate of  the  Court donated  under Section 3  and  3A  of  the  Act  cannot however be considered in isolation with constitutional provisions donating the same power. Article 164(3) of the Kenya Constitution 2010 provides as follows:-

“The Court of Appeal has Jurisdiction to hear appeals from : (a) The High Court and

(b) Any other court or tribunal by an Act of Parliament.

 

In interpreting the extend of this mandate, I cannot lose sight of the prescription in Article 259(1) and (3) thereof. This provide that the Constitution should be interpreted in a manner that: Promotes its purpose, values and principles, Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights and Permits the development of the law, and in accordance with the doctrine of interpretation that the law is always speaking.

57. The purpose, principles and values of concern to me in the interpretation of this mandate are only those that deal with the core mandate of the court namely dispensation of Justice. There is Article 48 which gives an open ended access to Justice which may include an access to Justice to ask this Court to re-open, re-hear and re-determine its finally concluded matter; Article 20(3) (a) (b) which enJoins the Courts to interpret the law in such away so as not to withhold a right i.e the right to access to the relief the applicant seeks; and Article 159(2) (d) which provides that “Justice shall be administered without undue regard to procedural technicalities”.

In view of the above, there is no way this Court can hide under the umbrella of its previous decisions handed out under the mandate donated by the Act as supported by the provisions of the retired Constitution which did not outlaw technicality as a tool in

the dispensation of Justice on the one hand and which did not have the benefit of an additional tool in the form of the “overriding obJective principles” now enshrined in Section 3A of the Act. When the totality of the above Appellate Court Act and Constitutional provisions of law mentioned above are taken into consideration, I find that there is Jurisdiction donated to this Court to revisit its past decisions. The maJor hand cap fronted by this Court in its past decisions has been that though it wished that it had such a power and since Parliament had not spoken there was nothing it could do. Now that Parliament has spoken through the “overriding obJective principle” in Section 3A of the Act as an additional tool of aid on the one hand and the consumers of Justice (the people) through the Constitution on the other hand, it is time for this Court to take a bold stand in the same vein as its Tanzanian counter part and state that on the basis of the provisions of law assessed above Jurisdiction exists in this Court  to re-open, re-hear and re-determine decisions previously determined by it.

58. The next question for me to determine, is whether the enabling provisions set out above provide adequate safeguards against fears of opening up the door to all and sundry to Jump onto the band wagon and flood this Court with past litigation and this in the process transgress on the rule of finality in litigation; and fail to provide sufficient safe guards against absurdities. My  response to this is in the affirmative. My reasons for saying so are as follows:-

1.  The Court has all along acknowledged the necessity of possessing such a power. Once donated, it will be Jealously guarded and protected by this same Court to ensure that it is not abused but used only in deserving cases for review.

2.  The court acknowledged that the High Court possessed such statutory power and has been exercising it since its creation. This Court did not point out any particular incident where the exercise of such a power by the High Court has led to any absurdities. The Court also acknowledged that in addition to the statutory provisions in Section 80 of the Civil Procedure Act, there were attendant supportive alternative rules. Likewise once accepted that the power exists, this Courts’ Rules which are not cast in stone can be amended to accommodate the new development as the Court is not devoid of power to make attendant rules defining its operation in any given situation.

3.       There is now the Supreme Court established as the final Court of this Land with an apparent restricted mandate limited in scope. There is however an opening  under  Article  163(4)  whereby  matters  finally  determined by  this Court can find their way to the Supreme Court through certification by this Court. It is now a matter of public notoriety that since the coming into effect of Article 163(4), this Court has competently and effectively sifted matters fit for reference to the Supreme Court and those that are not. See the case of Telkom Kenya Limited versus John O. Ochanda [2004] eKLR and Charles Nderitu Gitoi (suing on his behalf and as legal representative of Charity Nyaguthi Gitoi (deceased) versus Christopher Muchemba Wawi & 2 others [2004] eKLR. Likewise this Court can competently and effectively sift through any  matters  presented  to  it  and  determine  which  of  these  are  proper candidates for revisiting reopening and rehearing and which ones are not.

4.  There is an inhouse practice that can be borrowed from though this is backed up by a specific rule, rule 29(2) of this Court’s Rules vide which the Court has donated Jurisdiction to introduce additional evidence on appeal. I note this is a mere skeleton provision. But this Court of its own, in the exercise of that Jurisdiction  has  refined  parameters  within  which  such  a  relief  can  be accessed. See African Line Transporters Co. Limited versus Hon. Attorney General Mombasa Civil Application No. 159 of 2007, John Wagure Ikuku & 3 others versus Lee Gachuga Muthoga Nyeri Civil Application No. 196 of 2009. This Court can on the same vein define parameters through which a party can approach its seat of Justice to re-open, re-hear and re-determine a matter finally determined by it.

5.  It can follow the foot steps of the Supreme Court in the case of Hermanus Phillipus Steyn versus Glovanni Gneechi- Ruscone [2013] and lay down in clear terms the Rules of engagement in such a litigation through its own decisions.

6.  Fear of transgression on the principle of infallibility of this Courts Judges   no longer holds. Neither can it be excused in the wake of the requirement under the current Constitution that Judges of this Court as public servants be held accountable in the discharge of their functions in line with the prescriptions in Article 10 of the Constitution, 2010 dealing with National values.

7.  The Calibre, competence and capability of Judges of this Court is not in doubt. As put by this Court in Butt versus Rent Restriction Tribunal[1982]KLR417 (Orbiter) a Judge is a Judge. This Court is possessed of 24 carat gold Judges who can effectively handle any perceived influx of litigation in this area if the door is opened and put an end to this.

59. Having come to the conclusion that there is Jurisdiction in this Court to revisit the  question is  whether the  applicant has met the  threshold  for  such  a  re- opening of the decision of this Court ( M.K. Koome, S. Gatembu Kairu and J Otieno –Odek (Prof) JJA) dated and delivered at Nairobi on the 19th day of April, 2013 and interfere with it partially by reversing the order for stay of proceedings in the High Court pending the hearing and determination of the appeal from the decision of the High Court given on 19th  January, 2012. It is common ground as mentioned  earlier  on  herein  that  no  notice  of  appeal  was  filed  against  the decision of Ang’awa, J  but against the decision of G.B.M. Kariuki, J. ( as he then was) refusing to review the Judgment of   Ang’awa, J aforesaid. It is also undisputed that when the respondents moved to this Court seeking orders of stay, what they had in mind was to stay proceedings in relation to the order of G.B.M. Kariuki, J. refusing to grant an order for the review of the Judgment of Ang’awa, J. The correct position in law in so far as the invocation of this Court’s Jurisdiction under rule 5(2) (b) of this Court’s Rules is concerned has now been crystallized by case law. See the case of Equity Bank Limited versus West Link MBO Limited (Supra) for the proposition that, once a notice of appeal is filed, an appeal is deemed to be in existence as rule 2 defines an appeal as including an intended appeal; the decision in the case of Macharia M. Sande versus Kenya Cooperative Creameries Limited (Supra) and Nairobi City Council versus Thabiti Enterprises Limited (Supra) for the proposition, inter alia, that a Judge has no power to decide an issue not raised before him through the pleadings of which parties are made aware.  Lastly, see the case of National Cereals and Produce Board  versus  Errad  Supplies  &  General  Contractors  Limited,  Nairobi  Civil Application No. Nai 48 of 2012 (supra) for the proposition that no stay order is capable of being issued by a Court of law against a negative order (such as a dismissal or a striking out order)

60. As already mentioned above, it is not that the learned trial Judges who made the decision sought to be impugned were not aware of this position in law as the correct position to have guided their ultimate result of that determination. Of course they were. This is borne out clearly by the learned Judges’ observations set out in paragraphs, 26-27 of that ruling. I  find it prudent to reproduce them here under:-

 

“26  There  is  no  notice  of  appeal  in  relation  to  the  Judgment delivered on 2nd December, 2009. In the case of Nairobi City Council Versus Resley (2002) EA 494. This Court at page 494 stated.

“There is no provision for allowing a notice of appeal lodged in a later decision to be used in an application for stay of execution of an earlier decision.

And later in the same decision:

It is trite law that without a notice of appeal against particular orders we would have no Jurisdiction to grant a stay of those orders and  we  cannot,  therefore,  accept  Mr.  Oduol’s  argument  to  the effect that the notice of appeal against the ruling of 11th  April, 2002, entitles him to apply for a stay of execution of orders made on 11th March, 2002.

27. In this matter, the notice of appeal relates to the decision of the High Court given on 2nd December, 2010 dismissing the application for review. The order for stay that is sought is in relation to the Judgment delivered on 2nd December, 2009. No appeal has been preferred against that Judgment. In the case of John N. Liboyi versus the Board of Governors of St. John College Civil Application No. Nai 13 of 2009 (UR 92/2009) to which we were referred, this court held: “The Court has held on occasions too numerous to recite in this ruling that it is the filing of the notice of appeal which confers on the Court the Jurisdiction to grant an order of stay, an inJuction or a stay of further proceedings that is clear enough from the wording of the Rule”

61. The question I have to ask myself is whether the learned Judges having correctly appraised themselves of the parameters for the exercise of their Jurisdiction under rule 5(2) (b), then what compelling reason did they have for detouring from that stand in the manner done? The answer to this can be found in paragraphs 28, 29, 30 and 31 of the said ruling.

In summary, the learned Judges properly posed a pertinent question to themselves as to whether in the circumstances displayed in paragraphs 26 and 27 (supra) there was Jurisdiction to grant the orders that had been sought from them. They then refreshed their minds again with the orders sought before them and came to the conclusion that the orders had been framed in a confusing manner; they had addressed their minds to the confusing prayers with a lot of anxiety while acknowledging that there was no notice of appeal regarding the Judgment of Ang’awa, J of 2nd December, 2009.

62. Their foregoing observations notwithstanding, the learned Judges went a head to note that there was a valid notice of Appeal against the decision of the High Court given on 19th    January, 2012; the grounds raised in the memorandum of appeal against the orders of 19th January, 2012 could not be said to be frivolous; the application dated 2nd August, 2010 that culminated in the orders given by the High Court on 19th  January, 2012 included a prayer for review and the setting aside of the order of Lady Justice Mary Ang’awa delivered on 2nd  December, 2009. The learned Judges went on further to state, that had the application for review aforesaid been successful, the orders of eviction and an award of nominal damages would have been set aside. On that account, the learned Judges held that the respondents deserved an opportunity to be heard on the then intended appeal, bearing in mind the over arching obJective in the administration of Justice namely, to do substantive Justice to the parties therein, considering that it had been contended before the learned Judges that the respondents’ property under threat of sale in execution of the decree supported over 40,000 people. On that account, the learned Judges were satisfied that the 2nd  limb for the grant of the relief under Rule 5(2) (b) of the Rules of this Court had been satisfied.

63. The learned Judges did not stop there. They went on to observe that the sale of the  respondents’  land  to  recover  the  decretal  sum  of  Kshs.  18,731,335/= together with the Auctioneers’ charges of Kshs. 10,071,000/= would definitely have entailed the displacement of the over 40,000 people who were said to derive their livelihood from the suit land and  who would perhaps be rendered destitute. On the basis of the foregoing reasoning, the learned Judges opined that the particular circumstances of the case as  had been displayed before them warranted the grant of an order of stay of the proceedings in the High Court pending the hearing and determination of the appeal from the decision of the High Court given on 19th January, 2012.

64. It is this adherence to the overarching principle of substantive Justice to the

respondents than adherence to the clear crystallized principles governing the exercise of this Court’s discretionary powers under rule 5(2) (b)  of this Court’s Rules that the applicant has asked us to interfere with.  The applicant alleges lack of Jurisdiction to grant a relief based on the principle of overarching principle of

Justice. Drawing inspiration from the principles in the case of  Board of Governors Moi High School Kabarak & another versus Malcolmbell (supra), I  find that the learned Judges having found that the orders sought by the respondent in their bid to forestall the execution of the negative orders of G.B.M. Kariuki, J of 19th January, 2012 were confusing in that they had intertwined the issues of stay of the orders of G.B.M. Kariuki   J. with the stay of the orders of Ang’awa J; and considering that they were alive to the fact that there was no possibility of them granting a stay order to stay the negative order of G.B.M. Kariuki J; and the possibility of their attempt to stay the negative order of G.B.M. Kariuki, J in whatever language used would in effect result in them staying the orders of Ang’awa, J of 2nd December, 2009 without Jurisdiction, they should have downed their tools there and then.

65. Indeed  I   appreciate  the  overarching  principle  of  substantive  Justice  now enshrined in Article 159 of the Constitution  of Kenya 2010 is a fundamental principle which this Court cannot lose sight of. Nonetheless, I  find nothing in the said principle that authorizes a court of law to ignore clear rules of procedure fortified by principles of case law enunciated by this Court . Such a departure from a well beaten path of procedure would be an affront to the well established principle which is now trite that rules of procedure are not made for cosmetic value. They are meant to provide order, clarity and predictability in the Court process. Holding otherwise would be a clear recipe for chaos in Court processes.

67. The upshot of the above assessment is that, the applicant has a genuine grievance. There is merit in the application before us. I am accordingly inclined to partially review paragraphs 30, 31,32,33,34 and 35 of the ruling delivered by this Court on the 19th  day of April, 2013 in Nairobi civil Application No. Nai 18 of 2012 (UR.13/2012) and consequently do set aside the order of stay of proceedings contained and reflected in paragraph 35 of the aforesaid ruling. The applicant will have costs of the application. In view of the representation to Court that appeal No. 115 of 2013 is already filed and in view of the Orders made herein above, I direct that appeal No. 115 of 2013 be expedited.

Dated and delivered at Nairobi this 3rd day of October, 2014.

R.N. NAMBUYE

I certify that this is a true copy of the original.

DEPUTY REGISTRAR.

………………….……….……..

JUDGE OF APPEAL

 

IN THE COURT OF APPEAL

AT NAIROBI

(NAMBUYE, MWILU, MUSINGA, KIAGE & J. MOHAMMED, JJ.A.)

CIVIL APPLICATION NO. NAI. 90 OF 2013

BETWEEN

NGURUMAN LIMITED …………………………………….. APPLICANT

VERSUS

SHOMPOLE GROUP  RANCH  ………………...…. 1ST RESPONDENT

OL KIRAMATIAN GROUP  RANCH  ……………. 2ND RESPONDENT

(Being  an  application for  review  or  alternatively of  correction of  the

orders  given  by the Court of Appeal (Koome,  Gatembu  Kairu & Otieno- Odek, JJ.A) on 19th  April 2013

in

Civil  Application No. NAI. 18  of 2012

*************************

RULING OF MUSINGA, J.A.

It  is   important  to   understand   the    background   to   the applicant’s application dated 25th  April,  2013, the subJect matter of this ruling.  On 2nd   December, 2009  the High  Court of Kenya  at Kericho, (Ang’awa, J.) entered Judgment for the plaintiff (the applicant herein) in  HCCC  No. 65  of 2009 consolidated with H.C.C.C. No. 66  of 2009, Nguruman Ltd v Shompole Group Ranch & Others.            The  Court  granted the  applicant’s prayer for eviction of the  defendants (respondents) from a  parcel of land known as Title No.  Narok/Nguruman/Kamorora/1 and  nominal damages for trespass  amounting to  Kshs.5  million.    The respondents did  not file any  notice of appeal against the  decision and  indeed no  appeal has  been  preferred.   Thereafter a decree was issued  and execution proceedings commenced.

On  2nd    August,  2010   the   respondents filed  an  application seeking, inter  alia,  review and  stay  of execution of the  aforesaid Judgment  and   decree. The  application  was   heard  by   G.B.M. Kariuki, J.  (as  he  then   was).     Vide   a  ruling  delivered  on  19 th January,  2012, the  application was  dismissed.   Being  dissatisfied with that ruling, the  respondents filed a notice of appeal against the  Judge’s decision to refuse a review of the Judgment.

By an application dated 27th  January, 2012  filed under rules 1   (2) and   5   (2)  (b)  of  the   Court  of  Appeal  Rules,  the respondents prayed:

“(i)    That  this Honourable Court be  pleased to stay execution of the Judgment and  decree of the Honourable  Lady   Justice  Mary Ang’awa delivered  on   2nd    December, 2009  in   Kericho High    Court   Civil    Case    No.   65    of    2009   – Nguruman Limited v. Shampole Group   Ranch, Moshila Ole  Mataiyan, Nkoitiko Ole  Napiriya &

 Turuna Ole Kumari (consolidated with Kericho High    Court   Civil    Case    No.   66    of    2009   – Nguruman   Limited   v   Ol   Kiramatian   Group Ranch    Limited,   Mointi   Lemarora  Nkoyokoy, Albert Kuseyo  Kipainoi & Mugesa Ole Lenana) upon  the striking out and  dismissal of the applicants’ application for review by Justice G.B.M. Kariuki on  19th   January,  2012 pending the filing, hearing and  determination of the intended appeal from  the said  orders.

(ii)        That   the applicants be  at  liberty to apply for such further orders and/or directions as the Honourable  Court  may   deem  Just  and expedient to grant.

 

(iii)     That  the costs  of  this application be  provided for.”

This    Court,   differently    constituted,    considered    the    said application and in its ruling held,  inter  alia:

“26. There is no  notice of  appeal in  relation to the Judgment delivered on 2nd  December, 2009.  In the case  of Nairobi City Council v Resley  [2002] E.A. 494  this Court at page  494  stated:

There  is   no   provision   for    allowing  a notice of appeal lodged in a later decision to be used  in an application for stay of execution of an earlier decision.”

And later  in the same decision:

“It is trite law  that without a notice of  appeal against particular orders, we would have  no Jurisdiction to grant a stay of those orders and we  cannot, therefore  accept Mr.  Oduol’s argument  to  the  effect  that  the  notice  of appeal  against the  ruling of  11th   April, 2002 entitles him  to apply for  a stay of execution of orders made on 11th  March, 2002.”

27.   In this matter,  the notice of  appeal relates to the decision of  the High  Court given on  2nd December, 2010 dismissing the application for review.  The  order for  stay that is sought is in relation to the Judgment delivered on 2nd December,   2009.       No    appeal   has     been preferred against that Judgment.  In the case of John N. Liboyi v The Board of Governors St. John College to which   we  were referred,  this Court held:

“The Court has held  on occasions too numerous to recite in this ruling that it is the filing of the notice of appeal which confers on the court the Jurisdiction to grant an  order of  stay, an  inJunction or  a stay of further proceedings. That is clear enough from  the wording of the rule."

Notwithstanding that firm re-statement of the law  regarding this  Court’s Jurisdiction in dealing with rule 5 (2) (b) applications, the  Court  granted “an order for stay of proceedings in  the High Court pending the hearing and  determination of the appeal from the decision of the High Court given on  19th January, 2012.”

Dissatisfied with that ruling, the  applicant filed an application dated  25th   April,   2013   under  Sections  3  (2) and   3A   of  the Appellate Jurisdiction  Act,  Rules 1 (2), 35  (2) and  42  of this Court’s Rules and  Article 159 (2) (d) of the  Constitution of Kenya. The application seeks the  following orders:

“1.       ……………….

2.     THAT   this  Honourable  Court  be   pleased  to review paragraphs 30, 31, 32, 33, 34  and  35  of its ruling delivered by  the Court of  Appeal on the 19th   of  April, 2013 in  Nairobi Civil  Appeal No. NAI 18 of 2012 (UR 13/2012).

3.    THAT consequent upon  the said review, this Honourable Court do set aside  the order given for  the stay of proceedings contained and reflected   in    paragraph   35    of    the   ruling delivered by  the  Court of  Appeal  on  the 19th April, 2013 in Nairobi Civil  Application No. NAI

18 of 2012 (UR 13/2012).

4.     THAT further consequent upon  the said  review, this Honourable Court do allow the Preliminary ObJection of  the Applicant herein dated 20th March,  2012  and   do   dismiss    the  Notice  of Motion dated 27th  January, 2012.

5.     THAT  alternatively,  this  Honourable Court do correct the order made on the 19th  April, 2013 in  Nairobi Civil  Application No. NAI 18  of  2012 (UR  13/2012) by  setting aside  the order given for  the stay of proceedings contained and reflected in paragraph 35  of the ruling.

6.    THAT this Honourable Court does  give  such consequential, further  or  other order(s) as  it may  deem Just.

7.         THAT  the costs  of  this application be  provided for.”

In view  of the fact that the  applicant has sought review of specific paragraphs of the  ruling dated 19th  April,  2013, it is only  proper that I reproduce the  contents of those  paragraphs.   They  are  as hereunder:

“30. There is  however, a  valid   Notice of  Appeal in regard to the orders of  19th  January  2012.   Is there an  arguable appeal from  the decision of the High  Court given on 19th January 2012?   We are  persuaded the grounds raised in  the draft memorandum of  Appeal against the orders of

19th     January    2012,   cannot  be    said    to   be frivolous.   There is for  instance the question whether the High  Court was  right in  declining to review the order for  “nominal damages” of Kshs.5,000,000.00.   We  have   also  considered that  the  application dated  2nd    August, 2010 that  culminated in   the  orders  given  by   the High  Court on  19th  January  2012 included the prayer that:

“The   honourable  court  be   pleased   to review and  set aside  the order of Lady Justice Mary Ang’awa delivered on 2nd December, 2009.”

31.   If  the  applicants were  successful in   that application that  sought a  review  of  the Judgment   given   on   2nd    December 2009,  it would have  resulted in at  least an  order being made to set aside  the order of  eviction or  the payment of the nominal damages in the sum of Kshs.5 million.

32.  The  application dated 2nd  August 2010 was dismissed on the grounds inter alia  that there was no ‘error apparent on the face’ of the Judgment of  Ang’awa, J.     The  application was also   struck  out  for   reasons that  the  firm   of Onyango Otieno,  Kibet  and   Ohaga were  not properly on record.

33.   In our  view  the outcome of  the application for review, if it was  successful was intended to set aside  orders of  eviction and  the nominal damages.  We  think that, in the circumstances of this case, the applicants should  have  an opportunity, bearing in mind  the overarching obJective in  the administration of  Justice is to do substantive Justice, to be heard on the substantive  appeal  from   the  decision of  the High  Court given on 19th January 2012.

34.   Considering that  it  is   contended that  the applicants property under threat of sale  in execution of  the decree supports over  40,000 people we  think that the second   limb  for  the grant of relief under rule  5(2)(b) of the rules  of this Court are  satisfied.  There is a notification of sale  of the applicant’s parcel of land  in execution   of   the   decree  which    shows    the decretal  sum  to  be  recovered  is Kshs.18,731,335/- together with auctioneers charges of Kshs.10,071,000/-.  The sale of the applicant’s property would entail the displacement of  over   40,000  people who  are said   to  derive  their  livelihood from   the  suit land  and  they would perhaps be rendered destitute.

35.   This  Court has  power, under rule  5(2)(b) of the rules   of  this  Court,  to  make  three  types  of orders.      The    Court   can    order   a   stay   of execution,  an   inJunction  or   a   stay  of   any further proceedings.  We think the particular circumstances of this case warrant the grant of an  order for  stay of  proceedings in  the High Court pending the hearing and  determination of  the  appeal from   the  decision of  the High Court given on 19th January 2012.”

The  main  thrust of the  application is that the  Court  had  no Jurisdiction  to  hear   the  application  dated  27th    January,   2012 because there was no notice of appeal against the  order sought to be stayed.  The applicant further contended that the  order of stay of proceedings was  made  without any  party having sought for it and  without having heard parties on  the  same.    A Judge  has  no power  or  Jurisdiction  to   decide  an  issue   which  had   not  been pleaded, the  applicant contended, citing SANDE v KENYA CO-OPERATIVE LTD  [1992] LLR  314.  In  any  event, the applicant added,  there  were   no   further  proceedings in   the   High   Court capable  of  being  stayed.    The   High   Court   matter  had   been finalized, Judgment delivered, a decree issued  and  its  execution was underway.

One of the  grounds cited by  the  applicant in support of this application is that:

Article 159  of the Constitution of Kenya, Section 3A of   the  Appellate  Jurisdiction   Act   Cap.  9   Laws   of Kenya and  Rule  1  (2) of  the Court of  appeal Rules,

2010 each  empower the Court to make the orders prayed  for   which   are   necessary  for   the  ends   of Justice  and   to  give   effect  to the  overriding obJectives  of  a  Just  resolution  and   to  prevent  an abuse of  the process  of  the Court by  lack  of Jurisdiction and  illegality arising out of the acknowledged absence of Jurisdiction.”

The respondents opposed the application and  filed grounds of opposition raising the  following grounds:

“1.  The  Court lacks  Jurisdiction to entertain the application for  the review of  its orders and  to the extent that the application manifests a collateral challenge on  the correctness of  the decision  of   this  Court  issued   on   19th    April,

2013, the same  lies only  to the Supreme Court.

2.     The  application violates the doctrine of finality of this Court’s orders and  is therefore contrary to public  interest.

3.     The    application   seeks    to  re-argue  matters which  are  otherwise res Judicata.

4.     The  application  has  been   filed  mala fides   as the respondents have, keeping with the conditions imposed by  the Court in  the ruling of   19th    April,  2013,  already  filed  the substantive appeal herein vide  Civil Appeal No.

115  of 2013.  The present application merely delays  the  expeditious  hearing  and determination of the said  appeal.”

Mr. Ahmednasir, S.C. and  Mr. Nyaoga, who  appeared for the  applicant, submitted that this Court is empowered by Section 3A  of the   Appellate Jurisdiction  Act  to  review the  ruling in question as it is not a final Judgment.  They  submitted that unless the  Court does so, the  ruling would set a bad precedent where the Court can  deliberately choose  to exceed its  Jurisdiction and  grant orders of stay  of execution or  proceedings in  the absence of a notice of appeal.  That would also be against express provisions of the  Court’s Rules and contrary to a long  line  of its decisions which have  been  in  existence for decades.   Counsel   cited a  recent 5 Judge  decision of this  Court, EQUITY BANK LIMITED v WEST LINK MBO LTD, Civil  Application No. 78  of 2011  where the Court re-stated that its  Jurisdiction to  grant any  order under rule 5  (2)(b)  flows from an  appeal or  notice of appeal in  respect of which the specific relief is sought.

Mr. Masika, learned counsel for the  respondents, submitted that this  Court  in  granting the  order for stay  of proceedings was making the  decision conscious of the fact that the  respondents’ property that was  under threat of sale  in execution of the  decree supports over  40,000 people.   It was  therefore necessary to preserve it  until  the  appeal that  challenges the   High   Court’s refusal to  review its  Judgment is heard and  determined.  Counsel pointed out that the  appeal had  already been  filed.   He  added that this Court  lacks  Jurisdiction to review its  own  decisions.  He cited several decisions of this Court, among them, JASBIR SINGH RAI & 3 OTHERS v TARLOCHAN SINGH RAI & 4 OTHERS , Civil Application No. NAI 307 of 2003.

The fundamental issue for determination in this  application relates to the  Jurisdiction of this Court.  What is the source  of the Court’s Jurisdiction?  What is it empowered to do?

Article 164 (1) of the Constitution of Kenya, 2010 (“the Constitution”)  establishes the  Court of Appeal and  Article 164 (3) stipulates that:

“(3)  The   Court  of  Appeal  has  Jurisdiction to  hear appeals from-

(a)        the High  Court; and

(b)        any  other Court or  tribunal as prescribed by  an  Act of Parliament.”

The preamble to the  Appellate Jurisdiction Act reads  as follows:

An  Act   of  Parliament  to  confer  on  the  Court of Appeal Jurisdiction to  hear   appeals from   the High Court and  for purposes incidental thereto.”

Section 3 (1) of the  Act stipulates.

“The Court of Appeal shall  have  Jurisdiction to hear and  determine appeals from  the High  Court in cases in which  an appeal lies  to the Court of Appeal under any  law.”

The  Court’s  Jurisdiction is  therefore  properly  circumscribed and cannot be  enlarged. The  Supreme Court  of Kenya  in   SAMUEL KAMAU MACHARIA & ANOTHER v KCB LTD & 2 OTHERS, Application No. 2 of 2011 delivered itself thus:

A  court’s  Jurisdiction  flows   from   either  the Constitution  or  legislation or  both.    Thus, a  court can only exercise Jurisdiction as conferred by the Constitution   or    other  written  law.      It   cannot arrogate to itself Jurisdiction exceeding that which is conferred upon  it by  law.  We  agree with counsel for   the  first and   second   respondents  in  his submission that  the issue  as  to whether a  court of law  has  Jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes  to the  very   heart  of  the  matter;  for   without Jurisdiction, the Court cannot entertain any proceedings.   This  Court dealt with the question of Jurisdiction extensively  in,  In the Matter of  the Interim Independent  Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for  the Jurisdiction of a Court of law, the court must operate within the constitutional limits.   It cannot expand its Jurisdiction through Judicial craft or innovation.   Nor  can  Parliament  confer Jurisdiction upon  a  Court of  law  beyond the scope  defined  by the Constitution.   Where the Constitution confers power upon  Parliament to set the Jurisdiction of  a Court of  law   or  tribunal,  the  legislature would be within its authority to prescribe the Jurisdiction of such a court or tribunal by statute law.”

Under   rule 2  of the   Court of Appeal Rules, an  appeal includes an  intended appeal, which, by  virtue of rule 75  (1) is manifested by  filing of a  notice of appeal.   Rule   75   states as follows:

Any person who desires to appeal to the Court shall give  notice in writing, which  shall  be lodged in duplicate with the registrar of the superior court.”

It is therefore crystal clear  that before an appeal is filed a notice of appeal must first be lodged.  Without an appeal or a notice of appeal, the Court lacks  Jurisdiction to grant any orders.

The power of this  Court under rule 5 (2) (b) to order a stay of execution, an inJunction or a stay  of further proceedings is only exercisable   where  a   notice   of  appeal  has   been    lodged  in accordance with rule 75  of this Court’s Rules.  In  RUBEN & 9 OTHERS v NDERITU & ANOTHER [1989] KLR  459, this Court held  that:

At the stage of  determining an  application under Rule  5  (2) (b) there may  or  there may  be  no  actual appeal.    Where there  is  no  actual  appeal  lodged there nevertheless must be  an  intention of  appeal which  is  manifested by  lodging a  notice of  appeal. If there is  no  notice of  appeal lodged, one  cannot get an  order  under  rule   5  (2)  (b)  because …..the Jurisdiction  of   the  Court  of   Appeal  is  limited  to hearing appeals from  the High  Court and  if  there is no  appeal or  no  intention to appeal as  manifested by  lodgment of  the notice of  appeal, the Court of Appeal  would  have   no  business to  meddle  in  the business of the High  Court.”

I may  add  that, for myself, no matter the nature of inJustice that  an  applicant  believes  will   be  occasioned if  the   Court  of Appeal declines to  grant a relief under rule 5  (2)(b), as long  as there is no  appeal on  record (which includes a notice of appeal) the   Court’s  hands   are  tied and   it  cannot, in  the   guise   of administering  substantive  Justice,  purport  to   grant  any   order under the  aforesaid rule.   If it were  to do so, that would amount to violation of both  Article 164 (3) of the  Constitution as well  as Section 3 (1) of the  Appellate Jurisdiction Act.

Once  the  Court  realizes that there is no  notice of appeal it must simply strike out the  rule 5  (2)(b)  application, unless  it is withdrawn.   That  is  because the  Court  lacks  Jurisdiction to  hear the   application.    The  timeless  dicta  of  Nyarangi, J.A.  in   THE OWNERS OF MOTOR VESSEL  LILIAN “S” vs CALTEX  OIL (KENYA) LTD [1989] KLR 1 at page  14 comes  to mind:

Jurisdiction  is everything.  Without it, a  court has no power to take one  more  step.  Where a court has no Jurisdiction, there would be no basis  for  a continuation of  proceedings pending the evidence. A court of  law  downs  tools in respect of  the matter before it the moment it holds  the opinion that it is without Jurisdiction.”

Turning to the  application that came  up before our  sister and brother Judges, it was  not in  dispute that there was  no  notice of appeal against the Judgment of Ang’awa, J, delivered on 22nd December, 2009, yet  the notice of motion dated 27th   January, 2012  brought under rules 1  (2) and   5  (2) (b) of the  Court  of Appeal Rules sought stay  of execution of that Judgment.

Could  the  Court invoke rule 1(2) to grant some  relief to the applicants?  I think not. That sub rule  states:

“2.    Nothing in these Rules  shall  be deemed to limit or  otherwise affect the inherent power of  the Court to  make  such  orders  as  may   be necessary for  the ends  of Justice or to prevent abuse of the process  of the Court.”

The  inherent power referred to  in  the  aforesaid rule  must be  in relation to the power granted to the Court under Article 164 (3) of the  Constitution and  Section 3  (1) of the Appellate Jurisdiction Act  which is to hear  and determine appeals from the High  Court and  such  tribunals as may  be prescribed by  an Act of Parliament.  The inherent power of the  Court cannot be brought to bear  unless  the  Court is properly seized  of a matter and that presupposes existence of an appeal or notice of appeal.

In the  ruling sought to be reviewed, before issuing orders for stay  of execution of the  High  Court orders, our sister and brothers reminded themselves of the  Court’s  earlier holding in   NAIROBI CITY COUNCIL v RESLEY  (supra) that:

“It  is  trite  law   that  without  a   notice  of   appeal against  particular  orders,  we   would  have   no Jurisdiction to grant a stay of these orders….”

They  appreciated that “there  is  no  provision for allowing a notice of appeal lodged in a later decision to  be  used in an application for stay of an  earlier decision”.  See  NAIROBI CITY COUNCIL v RESLEY  (supra).   That  notwithstanding, the learned Judges observed:

“29.  There is, however, a  valid  Notice of  Appeal in regard to the orders of  19th  January,  2012.  Is there an  arguable appeal from  the decision of the High   Court  given  on  19th   January,  2012? We  are   persuaded the  grounds raised in  the draft  Memorandum of  Appeal against the orders of 19th  January,  2012, cannot be  said  to be frivolous….”

I think what the  Court was  saying in not so many words  is that it was not bound by this  Court’s earlier decisions to the effect that it is  the filing of the  notice of appeal in  respect of the impugned decision which  confers upon   the Court  Jurisdiction to  grant an order of stay,  inJunction or stay  of further proceedings. As long  as there  was   a  notice  of  appeal that  relates  to   the   decision  in question the  court can grant some  relief under rule 5 (2)(b), the learned Judges so implied.

With   great  respect,  I  do  not  subscribe to   that  school   of thought.  I am  alive  to  the  fact that this  Court  is free to  depart from its  previous decisions but I do not think it can  exercise such latitude if by so doing it will  be acting contrary to the  Constitution and  statute.  When  the Court  of Appeal was  the highest court in the   land,   Sir  William  Duffus, V.P.  in   DODHIA v NATIONAL & GRINDLAYS BANK LTD [1970] E.A. 195 observed as follows:

“I entirely agree with my  Lord  President that  this Court must, as the ultimate Court of Appeal, have  a similar  power  to  that  formerly  exercised  by   the Privy  Council  when  it was  the final Court of  Appeal for  Kenya.   The  duty of  this  Court in  Kenya is  to decide any  case  coming before it according to the laws  of Kenya and  this Court may  be unable to do so if it is bound  to follow a previous decision, which  is clearly contrary to law  and  which   this Court feels that  it  would be   wrong  to  follow,  and   the  Court must, therefore, as the ultimate Court of Appeal, be able   to  depart  from   a  previous  decision  when   it appears right to do so.”

The  Court’s  position as stated above was  that it would normally regard its  previous decisions as binding, while  remaining free in appropriate circumstances to depart therefrom.  The Court can depart from its  earlier decisions if it was  made  in error, or where the  decision conflicts with a later decision of the  Supreme Court. Where   there are  two   conflicting  decisions of this   Court, it  can choose   one   and   override  the  other.    The   principle  of  stare decisis  is important in  the administration of Justice.  It ensures predictability, certainty, uniformity and  stability in the  application of law.    This  Court  cannot deliberately and  without a  Justifiable cause  depart from its decisions which have  Constitutional and statutory  foundations.    The  earlier  bench   did   not  proffer  any reason for its departure from the  well  laid  down  principles.

Recently, the  Supreme Court of Kenya  in JASBIR SINGH RAI &  3  OTHERS vs  TARLOCHAN SINGH RAI &  4  OTHERS, Petition   No.  4   of  2012,  laid    down    broad  principles  and directions  regarding  its   own    precedents,  which  I   think  are applicable in this  Court.  They are as follows:

  1. where there  are   conflicting  past  decisions of the Court, it may  opt to sustain and  to apply one of them;
  2. the Court may  disregard a previous decision if it is shown  that such decision was given per incuriam;
  3. a  previous  decision  will   not  be   disregarded merely because some, or all of the members of the Bench  that decided it might now arrive at a different conclusion;
  4. the  Court  will    not  depart  from    its  earlier decision on grounds of mere doubts as to its correctness.”

The ruling which this   Court  has  been   asked   to review by the applicant was  not decided per  incuriam.  I agree  with Mr.  Masika that the Court was making a conscious decision to grant the  order of  stay   in  the   absence of  a  notice  of  appeal.    However,  no statutory provision or case law was cited as authority for so doing. I think the  Court had  no Jurisdiction to grant the  orders it did  and to that extent such orders were  void.   In the words  of Denning, L.J. in  MACFOY v UNITED AFRICA CO. LTD. [1961] 3 ALL ER 1169 at 1172:

“If an  act  is void, it is in law  a nullity. It is not only bad,  but  incurably bad.   There is  no  need   for  an order of the Court to set it aside. It is automatically null    and    void    without  more    ado,  though  it   is sometimes convenient to have  the Court declare it to be so.”

The  question that I now  have  to determine is  whether this Court  has  power to  review the  ruling of 19th  April,  2013  and  set aside  the  order of stay  of proceedings.  The respondent’s learned counsel submitted that once  the  Court has determined an appeal it has  no  residual Jurisdiction  to  re-open it.   He  cited JASBIR SINGH RAI & 3 OTHERS v TARLOCHAN SINGH RAI & 4OTHERS, Civil  Application No. NAI 307 of 2003,  where a 5 Judge  bench   Court  held   that it  had   no  such   power.    I  must however point  out  that  the  application  in  the  RAI  case   was seeking re-opening of a  final Judgment of the  Court.   See  also RAFIKI ENTERPRISES LTD v KINGSWAY & AUTOMART LTD Civil  Application No. 375 of 1996.

The  applicant’s  application  was  premised  on  rules  1(2), 35(2) and  42  of this Court’s Rules and  Article 159(2)(d)  of the  Constitution.   I have  already considered the scope  of the power conferred upon  the  Court by rule 1(2).

Rule  35(2) states as follows:

An order of the Court may  at  any  time be corrected  by   the  Court,  either   of   its  own motion or  on the application of  any  interested person, if  it does  not correspond with the Judgment it supports to embody or, where the Judgment  has  been   corrected  under  sub-rule (1), with the Judgment as so corrected.”

I think that rule  cannot be applied unless  it is acknowledged that the   Court   made   an   order  that  does   not  correspond with  its Judgment.  That is not the  case here.   Firstly, there is no Judgment delivered by  the  Court.   Secondly, the impugned orders were  not made    by    error.      As   regards  Article  159(2)   (d)   of  the Constitution which states that “Justice shall be  administered without undue regard to  procedural technicalities”, while  I think it is  of some  relevance, I am  not persuaded that it is  the most   efficacious ‘tool’  for  the  orders  sought.    If  there  is  an applicable  rule   it  ought to be  cited  rather  than  that  general constitutional principle relating to the  administration of Justice.

In  my  view, rule 57  (2)  of the Court of Appeal Rules is the  most  appropriate one.   The  marginal note  in  respect of both rules 57   (1) and   (2)  reads: “Rescinding of orders”.   I  will reproduce the  entire rule  for clarity:

“57. (1)  An order made on an  application heard by a  single Judge may  be  varied or  rescinded by  that Judge or  in  the absence of  that Judge by  any  other Judge  or  by  the  Court on  the  application of  any person affected thereby, if –

(a)       the order was  one  extending the time for  doing  any act, otherwise than to a specific date; or

(b)       the order was  one  permitting the doing  of some  act, without specifying the date by  which  the act  was  to be done, and  the person on whose  application the order was  made has  failed to show  reasonable diligence in the matter.

(2) An  order  made on  an  application to the Court may  similarly be varied or rescinded by the Court.”

The orders sought to be reviewed and/or set aside  were  made  on an  application to  the  Court, not in  a  Judgment flowing from an appeal.    The  “order” referred to   in   rule  35(2)  flows from  a Judgment but rule 57(2)  is  specific to  an  “order  made   on  an application”.    It is  not lost  to my  mind that  Section 2  of the Appellate   Jurisdiction   Act    defines   “Judgment”   to   include decree, order, sentence and  decision but in  the  context of rules 35  and57 there is a difference between an order issued  pursuant to a Judgment and an order made  on an application.

Neither the  Appellate Jurisdiction Act  nor the  Court of Appeal  Rules contain any  provision for review of this Court’s final Judgments, though it has been  held  in several decisions that the  court has residual Jurisdiction to reopen appeals, albeit in very limited  circumstances.    In   MUSIARA LTD  v  WILLIAM OLE NTIMAMA the Court stated:

“The  residual  Jurisdiction  to  reopen  appeals  was linked to a discretion which  enabled the Court of Appeal to confine its use  to the cases  in  which   it was  appropriate for  the Jurisdiction to be exercised. There was  a tension between a court having such residual Jurisdiction and  the need  to have  finality in litigation, such  that it was  necessary to have  a procedure  which    would  ensure  that  proceedings would only  be reopened when  there was a real requirement  for   that  to  happen.    The   need    to maintain confidence in the administration of Justice made it imperative that there should  be a remedy in a  case  where bias  had  been   established and   that might Justify the Court of Appeal in taking the exceptional course  of  reopening proceedings which it had  already heard and  determined. It should however be  clearly established that a significant inJustice had  probably occurred and  that there was no alternative effective remedy.”

In  CHRIS MAHINDA v KENYA POWER & LIGHTING CO. LTD (Civil Application No. NAI 174 of 2005)  the  Court  reiterated that it had   residual  Jurisdiction  to  review,  vary   or  rescind  its decisions  in  exceptional  circumstances.    However,  in  the   Rai case,  the   five  Judge bench   (Omolo,  Bosire,   GithinJi,  Waki   and Deverell, JJ.A.)  the Court  pointed out that  in   MUSIARA LTD v WILLIAM OLE NTIMAMA             (Supra)        and     CHRIS  MAHINDA v KENYA POWER & LIGHTING CO. LTD  (Supra) the  issue  of the Court’s Jurisdiction was not raised. The Court reiterated its earlier position     in         RAFIKI ENTERPRISES             LTD    v KINGSWAY AUTOMATIC LTD (Supra).

Returning to the  Court’s Jurisdiction to review certain aspects of the ruling delivered on 19th April,  2013  in Nairobi Civil  Appeal No. NAI 18  of 2012, I hold  the view  that rule 57(2) grants this Court   Jurisdiction  to   vary    or   rescind  an   order  made    in   an application.  I believe there are sufficient grounds for holding that the  orders for stay  of further  proceedings were  not merited.   I summarize those  grounds as follows:

(a)        there was  no notice of appeal against the Judgment delivered on  22nd  December, 2009 and  consequently the court lacked Jurisdiction to  grant  any   relief  under rule 5(2) (b).

(b)       there  were no  High   Court  proceedings  capable  of being stayed.

(c)     the  orders granted  were  not  sought by  the respondents.

(d)       none  of  the parties were given any  opportunity to address the  Court on  the issue  of  stay of  further High Court proceedings.

For  these   reasons, I  would grant  prayers 2,  3,  4  and  5  of the application dated 25th April,  2013.  The respondents shall  bear  the costs  of the application.  In  view  of the orders granted herein, I direct that hearing of Civil Appeal No. 115 of 2013  be expedited.

Dated and   Delivered at  Nairobi this   3rd   day   of  October 2014.

D.K. MUSINGA

……………………………

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR

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