[2021] KESC 10 (KLR)
The Supreme Court held that it had already determined the appeal and a prior review application, rendering the present application for a further review barred by the doctrine of res judicata. The court emphasized that, having delivered its judgment and ruled on the review, it was functus officio and lacked...
Source-derived case information.
- Citation
- [2021] KESC 10 (KLR)
- Parties
- Applicant: Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates; Respondent: Josephine Akoth Onyango; Respondent: Simon Otieno Onyango; Respondent: Director of Public Prosecutions; Respondent: Director of Criminal Investigations Department; Respondent: Sehit Investments Limited; Respondent: Kenya Commercial Bank Ltd; Interested Party: Attorney General; Interested Party: Kenya National Commission on Human Rights
- Court
- Supreme Court
- Court Station
- Supreme Court of Kenya
- Jurisdiction
- Kenya
- Case Number
- Petition 18 of 2015
- Procedural Posture
- Petition / Ruling on Application for Review After Judgment and Prior Review Ruling
- Outcome
- application struck out
- Judges
- PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola
- Legal Topics
- Res Judicata, Functus Officio, Review of Judgment, Supreme Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates
Applicant
Josephine Akoth Onyango
Respondent
Simon Otieno Onyango
Respondent
Director of Public Prosecutions
Respondent
Director of Criminal Investigations Department
Respondent
Sehit Investments Limited
Respondent
Kenya Commercial Bank Ltd
Respondent
Attorney General
Interested Party
Kenya National Commission on Human Rights
Interested Party
Procedural Posture
Petition / Ruling on Application for Review After Judgment and Prior Review Ruling
Legal Issues
- 1 Whether the Supreme Court has jurisdiction to entertain a second application for review after it has already delivered judgment and ruled on a prior review application.
- 2 Whether the principle of res judicata bars the present application.
- 3 Whether the court is functus officio after delivering its judgment and ruling on review.
Ratio Decidendi
The Supreme Court held that it had already determined the appeal and a prior review application, rendering the present application for a further review barred by the doctrine of res judicata. The court emphasized that, having delivered its judgment and ruled on the review, it was functus officio and lacked jurisdiction to entertain any further applications on the same matter. The court further clarified that the Supreme Court Act and Rules do not provide for a review upon a review, making the present application not only procedurally improper but also an abuse of the court process. The application was therefore struck out as frivolous and vexatious, and the applicant was ordered to pay...
Court Disposition
application struck out
Orders
- The Notice of Motion dated 14th September 2020 and filed on 3rd November 2020 is hereby struck out.
- The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.
Full Case Text
Judgment text and source record
36 paragraphs
Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested parties) (Petition 18 of 2015) [2021] KESC 10 (KLR) (Civ) (22 October 2021) (Ruling)
Neutral citation number: [2021] KESC 10 (KLR)
Republic of Kenya
In the Supreme Court of Kenya
Petition 18 of 2015
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
October 22, 2021
Between
Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates
Applicant
and
Josephine Akoth Onyango
1st Respondent
Simon Otieno Onyango
2nd Respondent
Director of Public Prosecutions
3rd Respondent
Director of Criminal Investigations Department
4th Respondent
Sehit Investments Limited
5th Respondent
Kenya Commercial Bank Ltd
6th Respondent
and
Attorney General
Interested party
Kenya National Commission on Human Rights
Interested party
(Being an Appeal arising from the Judgment of the Court of Appeal delivered at Nairobi on the 2nd October 2015 in Civil Appeal No. 51 of 2014)
Ruling
1. On 5th October 2017, this Court delivered a Judgment in which it dismissed the appeal herein for want of jurisdiction and by a Ruling delivered on 23rd October 2018, the applicant’s Motion for review of that Judgment was similarly dismissed. This being the third time the applicant is having a bite on the same cherry, the facts are not pertinent to the present Ruling.
2. Notwithstanding the finality of our decisions above, the Applicant, on 3rd November 2020, filed yet another application seeking orders to review the Judgment and Ruling on review of the same Judgment.
3. We have perused that application and can only but agree with the 6th respondent that;i.The principle of res judicata is squarely applicable to the present Motion as this court has finally and without equivocation settled both the question of the appeal and review thereof. It is an exercise in futility for us to be called upon, again, to determine the same issues – see //John Florence Maritime Services Limited & cnother v Cabinet Secretary, Transport and Infrastructure & 3 others// [2021] eKLR.ii.Upon delivery of Judgment and the Ruling on review, this court became {{term{refersTo } functus officio}} and there is no known jurisdiction for it to revisit any aspect of the appeal. Certainly, a review upon a review is completely alien to the Supreme Act and the Rules made thereunder. We settled the issue of functus officio in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR.iii.On costs, the same principles above apply save that, as the present Motion is utterly frivolous and vexatious, the applicant shall bear the costs hereof.
4. In the event and for reasons above:i.The Notice of Motion dated 14th September 2020 and filed on 3rd November 2020 is hereby struck out.ii.The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.
5. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021. P. M. MWILU.....................................................................DEPUTY CHIEF JUSTICE & VICEPRESIDENT OF THE SUPREME COURTM. K. IBRAHIM.....................................................................JUSTICE OF THE SUPREME COURTS. C. WANJALA.....................................................................JUSTICE OF THE SUPREME COURTNJOKI NDUNGU.....................................................................JUSTICE OF THE SUPREME COURTI. LENAOLA.....................................................................JUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA