Dim Properties Limited v Lamu Breeze Investments Limited & 6 others (Civil Appeal (Application) E013 of 2021) [2025] KECA 2241 (KLR) (19 December 2025) (Ruling)
Neutral citation:
[2025] KECA 2241 (KLR)
Republic of Kenya
Civil Appeal (Application) E013 of 2021
AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA
December 19, 2025
Between
Dim Properties Limited
Appellant
and
Lamu Breeze Investments Limited
1st Respondent
Equitorial Commercial Bank Ltd
2nd Respondent
Charles Malakwen
3rd Respondent
Lucas Chimera Kenga
4th Respondent
The Senior Registrar of Titles
5th Respondent
County Government of Kilifi
6th Respondent
The Attorney General
7th Respondent
(Being an appeal from the Judgement and Decree of the Environment and Land Court of Kenya at Malindi (Olola, J.) delivered on 22{{^nd}} November 2019 in ELC No. 224 of 2014)
Ruling
1.By a Notice of Motion dated 4th November 2024 brought under Rule 59(2) of the Court of Appeal Rules, 2022 the applicant, Dim Properties Limited, seeks: that this Court be pleased to review the decision made in its judgement dated 11th October 2024 by varying and/or rescinding this (sic) and instead substituting the same allowing the appeal; and that costs of the application be in the cause.
2.The genesis of the dispute before us surrounded the question of the lawful ownership of L.R. No. 28462 (the suit property) held in the applicant’s name after consolidation of Plot Nos. 10159 and 10160. From the evidence tendered before Malindi Environment and Land Court (the ELC) Case No. 224 of 2014, it was established that Charles Malakwen (the 3rd respondent) and Lucas Chimera Kenga (the 4th respondent) had illegally and fraudulently obtained and registered themselves as the owners of Plot No. 10159 North of Kilifi Township vide Title CR No. 44095 before consolidating it with Plot No. 10160 and transferring the consolidated property to the applicant on 19th August 2008. The learned Judge (Olola, J.) held that there was nothing capable of being transferred to the applicant due to the fraudulent nature of the transaction.
3.On appeal to this Court (Murgor, Laibuta & Odunga, JJ.A.), the decision of the ELC was upheld vide a Judgement dated and delivered on 11th October 2024. The Court agreed with the findings of the ELC that the 3rd and 4th respondents’ acquisition of the suit property was fraught with illegalities, thus bringing into question the root of their title; that, therefore, any subsequent transfer could not be termed as legal on account of the fraud; and that, on that basis, the applicant’s claim that he was the bona fide purchaser of the suit property without notice was unfounded. The appeal was accordingly dismissed.
4.The present Motion seeking to review this Court’s judgement is founded on the grounds on its face and the supporting affidavit of Ashok Doshi, one of the applicant’s Directors sworn on 4th November 2024. He deposed that he now had in his possession evidence that shows that the applicant paid the 3rd and 4th respondents a purchase price of Kshs.13,500,000 and, hence, it (the applicant) was a bona fide purchaser for value, by which fact this Court was not persuaded.
5.Mr. Ashok stated that the evidence he now has, could not be discovered or adduced earlier with any due diligence on account of his absence during the trial due to ill health; that the additional evidence was proof that the applicant was the legitimate owner of the suit property, and that, therefore, there is an error or mistake apparent on the face of the record to warrant review of the judgment; and that no prejudice will be suffered by the respondents as they will be given an opportunity to controvert the additional evidence to be adduced.
6.Opposing the application, Bhupinder Singh Dogra, the 1st respondent’s Director, filed a replying affidavit dated 15th November 2024. He deposed that the applicant already demonstrated its intention to proceed to the Supreme Court by filing a Notice of Appeal dated 25th October 2024 and, hence, the applicant has to decide whether it wishes to appeal or pursue review of this Court’s decision; that the applicant had earlier on filed an application in this Court dated 22nd July 2022 seeking to adduce additional evidence, but that the said application was dismissed vide a ruling dated 28th April 2023 (Gatembu, JA.), and that the issue that he now raises is res judicata; and that to allow a review at this stage without the evidential material being presented before the trial court would be a miscarriage of justice, thereby circumventing the doctrine of fair trial as enshrined under Article 50 of the Constitution as the applicant had the opportunity to adduce all the necessary evidence to prove its case, which it did.
7.The 1st respondent contended that it would suffer prejudice as it has been in the corridors of justice for more than 11 years; that, during that period, it has not had access to or use of the suit property, the same having been in the applicant’s hands.
8.According to the 1st respondent, the application as framed divests this Court of the jurisdiction to grant the prayers sought and, as such, the application ought to be dismissed with costs to the respondents.
9.In its supplementary affidavit dated 14th May 2025, also deposed by Bhupinder Singh Dogra, it was stated that the 1st respondent has already taken possession of the suit property; that the 5th respondent, the Senior Registrar of Titles, had already complied with the judgement of this Court by cancelling the title to the suit property and, consequently, has restored the original Plot No. 10159 to its (1st respondent) name, and that a Charge is already registered to Bullion Bank Limited (the predecessor of the 2nd respondent).
10.When the application came up for hearing on 7th May 2025, learned counsel Mr. Barasa holding brief for Mr. Khargram appeared for the applicant while learned counsel Mr. Munyithya appeared for the 1st respondent. There was no appearance for learned counsel Mr. Gikandi, whom we were informed represented the 2nd and 3rd respondents, despite service with a hearing notice. Mr. Munyithia informed the Court that he had instructions that the 6th respondent had no interest in the application. Mr Barasa wholly relied on the applicant’s written submissions dated 10th January 2025. On his part, Munyithia submitted that he would solely rely on the 1st respondent’s replying and supplementary affidavits.
11.The applicant submitted that, under the current constitutional dispensation, this Court has the jurisdiction to review its judgement. In this regard, it relied on this Court’s decisions in Peter Kimani Kairu T/A Kimani Kairu & Co. Advocates v Ann Marie Cassiede & Another (2017) KECA 374 (KLR); and Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited (2014) KECA 872 (KLR).
12.It was submitted that the merit of the application is hinged on the fact that the applicant now has evidence to show that the purchase price of Kshs.13,500,000 was paid to the 3rd and 4th respondents; that this was a testament that the applicant was a bona fide purchaser for value; that the evidence it seeks to adduce could not, with any due diligence, have been discovered earlier as it was not in its possession due to unavailability of its Director; that the reason for failure to adduce the evidence is an error or mistake apparent on the face of the record which constitutes a ground for review of a judgment; and that the new evidence will settle the issues as to whether the purchase price was settled by the applicant, and whether due diligence was done on the 3rd and 4th respondent’s legitimate ownership of the title to the suit property.
13.We have considered the application, the grounds and affidavit in support thereof, the applicant’s submissions and the 1st respondent’s affidavits in opposition to the application. In our view, the only issue that falls for determination is whether the applicant has met the threshold to warrant our review of this Court’s Judgment dated and delivered on 11th October 2024.
14.Article 164(1) of the Constitution establishes the Court of Appeal whose jurisdiction is delineated under Article 164 (3) of the Constitution as follows:3.The Court of Appeal has jurisdiction to hear appeals from-a.the High Court; andb.any other court or tribunal as prescribed by an Act of Parliament.
15.Section 3(1) of the Appellate Jurisdiction Act, Cap 9 provides that:QUOTE"The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and any other Court or Tribunal prescribed by an Act of Parliament in cases in which an appeal lies to the Court of Appeal under any law."
16.This Court’s jurisdiction is properly circumscribed in both the Constitution and Statute and cannot be enlarged to exceed what it is conferred with under the law.
17.It is not disputed that the appeal from Malindi ELC Case No.224 of 2014 dated and delivered on 22nd November 2019 (Olola, J.) was heard and determined with finality by this Court on 11th October 2024. The doctrine of functus officio envisages that, once a Court pronounces itself on a maatter, there is no room for it to wiggle into re-opening it. The Supreme Court of Kenya in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others (2013) KESC 8 (KLR) cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832, which reads:
18.However, an exception to revisiting a judgement arises where there are minor clerical or arithmetic mistake as envisaged under Section 99 of the Civil Procedure Act. The Court is barred from correcting substantive decisions. Under Article 163(4) of the Constitution, a party aggrieved by this Court’s decision has the leeway to appeal to the Supreme Court. In Ethics and Anti-Corruption Commission v Kenya Broadcasting Corporation & 3 others (2025) KECA 873 (KLR), this Court rendered itself as follows:
19.In an instant as the one before us where we are being asked to review our decision, the parameters to do so have been a subject of discussion in many decisions. In Benjoh Amalgamated Limited (supra), this Court rendered itself thus:
20.In Niels Bruel v Moses Wachira & 2 others (2018) KECA 116 (KLR), the applicant sought to review the judgment of this Court on the basis that the Court had failed to evaluate the evidence before the first appellate Court. The applicant argued that because of that failure, his constitutional rights to a fair hearing had been infringed. The Court rejected the argument and stated:
21.In Cape Holdings Limited (Under Administration) v Synergy Industrial Credit Limited (2023) KECA 1497 (KLR), this Court stated:
22.Furthermore, in the decision of Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others (2017) KESC 25 (KLR), the Supreme Court identified the exceptional circumstances where the Court, in exercise of its inherent powers, may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders so as to meet the ends of justice, and which circumstances shall be limited to situations where:
23.On the issue of review, in Nguruman Limited v Shompole Group Ranch & Another (2014) KECA 358 (KLR) Musinga, JA. stated that:
24.Against the backdrop of the case law cited herein above, it is clear that this Court’s residual jurisdiction to review its decisions has to be exercised cautiously, with circumspection, on the rarest of the cases and on a case-by- case basis.
25.In the instant case, the applicant’s complaint is that the finding that it was not a bona fide purchaser of the suit property was pegged on the fact that there was no evidence of the money paid towards purchase of the suit property. Thisbeing one of the issues that fell for determination in the impugned Judgment, it follows that it is a matter subject to appeal in the Supreme Court. We make this finding, just as we have observed elsewhere in this Ruling, fully aware that we cannot purport to sit on appeal on our own decision.
26.The upshot is that the applicant’s Motion dated 4th November 2024 is hereby dismissed with costs to the 1st respondent.
DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF DECEMBER,2025.A. K. MURGORJUDGE OF APPEAL.....................................DR. K. I. LAIBUTA CArb, FCIArb.JUDGE OF APPEAL.....................................G. W. NGENYE-MACHARIAJUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR