[2006] KECA 267 (KLR)
The Court held that there is no requirement to constitute a full bench of five judges merely because a party intends to challenge a prior decision of the Court of Appeal. The fact that the correctness of a previous decision (Tononoka Steels Ltd case) may be raised in submissions does not, in itself, justify...
Source-derived case information.
- Citation
- [2006] KECA 267 (KLR)
- Parties
- Appellant: African Development Bank; Respondent: Beatrice Agnes Acholla; Respondent: Rosemary Ambalo Acholla
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 135 of 2002
- Procedural Posture
- Civil Appeal / Application for Expansion of Bench Prior to Hearing of Appeal
- Outcome
- Application for expansion of the bench to five judges rejected.
- Legal Topics
- Composition of Bench, Review of Prior Decision, Privileges and Immunities, International Organizations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
African Development Bank
Appellant
Beatrice Agnes Acholla
Respondent
Rosemary Ambalo Acholla
Respondent
Procedural Posture
Civil Appeal / Application for Expansion of Bench Prior to Hearing of Appeal
Legal Issues
- 1 Whether the appeal should be heard by a full bench of five judges instead of the standard three-judge bench.
- 2 Whether the intention to challenge a prior Court of Appeal decision (Tononoka Steels Ltd case) justifies constituting a larger bench.
Ratio Decidendi
The Court held that there is no requirement to constitute a full bench of five judges merely because a party intends to challenge a prior decision of the Court of Appeal. The fact that the correctness of a previous decision (Tononoka Steels Ltd case) may be raised in submissions does not, in itself, justify expanding the bench. Both three-judge and five-judge benches have the same powers to determine such issues. The application for an expanded bench was therefore rejected, and the appeal will proceed before the standard three-judge bench.
Court Disposition
Application for expansion of the bench to five judges rejected.
Orders
- The application to constitute a full bench of five judges is rejected.
- The appeal shall proceed before the three-judge bench as constituted.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Civil Appeal 135 of 2002
AFRICAN DEVELOPMENT BANK…….…………………...………………..APPELLANT
AND
BEATRICE AGNES ACHOLLA…………………..….……………….1ST RESPONDENT
ROSEMARY AMBALO ACHOLLA………………....………………..2ND RESPONDENT
(Appeal from a Ruling and Order of the High Court of Kenya at Nairobi (Rimita, J) dated 20th December, 2001
in
H.C.C.C. NO. 3157 OF 1996)
*****************
RULING OF THE COURT
This appeal was listed for hearing before a bench of three judges but when Mr. Ojiambo, counsel for the appellant, was asked to present his submissions he informed the Court that as he would, in the appeal, be seeking a reversal of the judgment of this Court in TONONOKA STEELS LTD VS. THE EASTERN & SOUTHERN AFRICA TRADE AND DEVELOPMENT BANK (PTA) [2002] 2 EARL 536he invited us to consider constituting a full bench of five judges. He submitted that the decision in the case offends international norms of immunity. He was of the view that the issues which may be raised in the appeal now before us would be of considerable importance as concerns the privileges and immunities of international organizations, their staff, and Members’ representatives to those organizations.
Mr. Ojiambo pointed out that the TONONOKAcase was not referred to Rimita, J. whose decision is the subject matter of this appeal. If it had been brought to his notice, probably, his decision would be different, Mr. Ojiambo stated. He however, conceded that an ordinary bench of three judges could still properly decide on all the issues raised in both the TONONOKA case and in this appeal.
Mr. Namada for the respondents had no objection to Mr. Ojiambo’sapplication for an expanded bench.
In INCOME TAX V. T [1974] EA 546, Spry, Ag. VP, speaking for the court said:-
“I would also remark that where it is intended to ask this Court to reverse one of its own decisions, the President should be asked to consider convening a bench of five judges although a bench of three has the same powers.”
As far as we are concerned we have not been shown a decision of this court which suggests in any manner that the TONONOKAcase had been wrongly decided. The fact that the correctness of the decision may be raised in submissions to be canvassed in this court is not a ground for establishing a full bench of five judges. A bench of three can still decide on the correctness or otherwise of the decision since it has the same powers.
In our view, we do not see any reason whatsoever to expand the composition of the bench. We reject the application.
DATED and DELIVERED at NAIROBI this 28th day of April, 2006.
P.K. TUNOI
………………………………
JUDGE OF APPEAL
E.O. O’KUBASU
………………………………………
JUDGE OF APPEAL
P.N. WAKI
………………………………….
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR