https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1384

Otundo & 5 others v Creek Marketing and Development Limited (Civil Appeal (Application) E132 of 2022) [2026] KECA 1384 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1384 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E132 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Bernard Onkundi Otundo 1st Applicant Barnabas Kiprono Bwambok 2nd Applicant Kefa Nyamongo Oenga 3rd Applicant Dancan Ochenge Oyaro 4th Applicant Kenneth Oduol Esay 5th Applicant James Kambo Muthusi 6th Applicant and Creek Marketing and Development Limited Respondent (Being an application for review of the Judgment and Orders of the Court of Appeal of Kenya at Mombasa (Murgor, Laibuta & Odunga, JJ.A.) delivered on 12th April 2024 in Civil Appeal No. E132 of 2022) Ruling 1.Before us is a Notice of Motion dated 8th May 2024 by which the applicants seek review of this Court’s judgment delivered on 12th April 2024. The Motion is supported by the annexed affidavit of their advocate, Eric Masese, sworn on 8th May 2024, essentially deposing to three grounds on which the application is anchored, namely: that there exists a confusion as regards the order of mesne profits; that paragraphs 83, 84, 88(j) and the final orders of the judgment are inconsistent; and that there is sufficient cause to review, or clarify the judgment. 2.In support of the applicants’ Motion, learned counsel, M/s. Kosgey & Masese, filed written submissions dated 23rd May 2024 arguing that the respondents did not seek recovery of mesne profits, but that the applicants did; and that it was incumbent on the Court to make final orders in accord with its findings in the body of the judgment, and to further direct, either remission of the suit to the superior court for determination of the quantum of mesne profits, or to adopt the evidence adduced at the trial with regard to mesne profits and direct that it be paid to the applicants. They urged that this Court do order that the applicants are entitled to mesne profits in respect of the suit property at Kshs. 80,000 per month from 21st July 2022 until delivery of possession. 3.The respondent opposed the applicants’ Motion vide the replying affidavit sworn by Stephen Blanchet (a director of the respondent) on 14th May 2024. According to the deponent, the judgment is clear and there is no confusion as regards the order on mesne profits to warrant review. Blanchet stated that the applicants are, in effect, seeking re-adjudication of the issues on appeal for the second time; that his Court is functus officio as regards the appeal; that the applicants are cherry picking parts of the judgment instead of reading the judgment in its totality. He urged us to disallow the application with costs to the respondent. 4.In rebuttal, learned counsel for the respondent, Ms. Caroline Nthenya Katisya, filed written submissions, list of authorities and case digest dated 3rd June 2024. Counsel cited the cases of Ushago Diani Investment Limited v Jabeen Manan Abdulwahab [2019] eKLR; and Godfrey Karume v Kilimo Shutu & 6 others [2020] eKLR, highlighting the residual jurisdiction of this Court to review its own decisions; and Sholleei v Judicial Service Commission & Another [2023] KESC 8 (KLR), highlighting the purpose of the doctrine of functus officio. 5.The mainstay of the orders complained of are contained in paragraph 88(j) of our judgment in which this Court observed that “the appellants were entitled to vacant possession and mesne profits in respect of the suit property as from the date of registration of Transfer and Charge ..., and on full payment to the respondent of the purchase price and late payment interest”. 6.In the judgment, the Court took to mind the fact that the Transfer and Charge over the suit property were not registered until 21st June 2012. The outstanding balance of the purchase price was paid on 8th August 2012. However, the late payment interest conditional to which the applicants were entitled to possession as decreed in paragraph 88(j) of our judgment remained unpaid as of the date of judgment, to wit, 12th April 2024. Hence, the order in paragraph 90(a) to the effect that “the appellants do pay to the respondent’s late payment interest of Kshs. 6,540,005 subject to which the respondent do forthwith deliver vacant possession of the suit property to the appellants.” Put simply, the applicants were entitled to vacant possession only upon payment of the amount aforesaid and, if vacant possession was thereafter withheld, to mesne profits for the period possession is withheld. The import of the impugned paragraph 83 is that the right to possession was conditional upon registration of the Transfer and Charge, payment of the balance of the purchase price as well as the contracted default interest. 7.Likewise, paragraph 84 addressed the fact that the respondent was not entitled to withhold possession after the applicants satisfied all the aforesaid conditions. We fail to see what the applicants term as confusing and find no merit in their Motion for review. Their claim that they were entitled to mesne profits from 21st July 2012 is tantamount to a suggestion that the Transfer and Charge had been registered, and that the balance of the purchase price as well as the contracted default interest had been fully settled by that date. 8.Having said that, it would be remiss of us not to clarify the basis on which this Court may be called upon to review its final judgment. It is not lost on us that the demands of justice compelled the Court to evolve a jurisprudence that permits it, in strictly defined and exceptional circumstances, to revisit and review its own final judgments pursuant to sections 3 and 3A of the Appellate Jurisdiction Act (which confer upon the Court general powers to do justice in proceedings before it); and rule 35 of the Court of Appeal Rules, 2022 (which deals specifically with the correction of clerical and arithmetical errors in accord with the slip rule) as enunciated by this Court in Synergy Industrial Credit Limited v Cape Holdings Limited [2021] eKLR. 9.Pronouncing itself on the doctrine of functus officio in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), the Supreme Court held that, once a court delivers its judgment, it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice. 10.To this end, courts have consistently emphasized that the jurisdiction to review a final judgment must be circumscribed, lest the review mechanism becomes a vehicle for endless re-litigation of concluded matters. Citing its decision in Nguruman Ltd v Shompole Group Ranch & Another [2014] eKLR, the Court in Benjoh Amalgamated Limited v Kenya Commercial Bank Limited [2024] KECA 593 (KLR) held that the jurisdiction to review its judgments must be exercised in limited circumstances so as to "avert opening a flood gate for applications challenging the correctness of decisions. 11.In Benjoh Amalgamated Limited v Kenya Commercial Bank Limited (ibid), the Court of Appeal confronted the question whether it had power to recall, review and set aside its own earlier final judgment. The Court undertook a comparative survey of jurisprudence from other common law jurisdictions and, balancing the finality principle against the justice principle, pronounced the following ratio decidendi:"The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and, in doing so, the principles to be had regard to are, on the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation and, on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public " 12.Having carefully considered the applicants’ Motion, the grounds on which it is founded, the rival submissions, the cited authorities and the law, we find no basis on which we are called upon to exercise our residual jurisdiction to review our judgment. To our mind, the perceived confusion does not invite us to invoke the slip rule or, otherwise, find that the impugned paragraphs of our judgment were induced by fraud, bias, or other injustice. Accordingly, the applicants’ Notice of Motion dated 8th May 2024 fails and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR...................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...................................JUDGE OF APPEALI certify that this is a true copy of the originalsignedDeputy Registrar