The Court of Appeal has nullified one of its own decisions after acknowledging that it inadvertently delivered a ruling on the wrong application, leaving the matter that had actually been argued before the bench unresolved.
In a judgment delivered on June 26, 2026, Justices Wanjiru Karanja, K. M’Inoti and Pauline Nyamweya ruled that the mistake amounted to an “error apparent on the face of the record” and exercised the court’s inherent jurisdiction to set aside the ruling in the interests of justice.
The application was brought by the Attorney General following the court’s ruling of May 29, 2026, which mistakenly determined an application for stay of execution that had already been overtaken by events. The application that had been heard by the court, however, was one filed on September 23, 2024, seeking the joinder of an interested party, but no ruling was delivered on it.
During the hearing, the Attorney General argued that the error was obvious from the court record and urged the bench to recall its earlier decision.
According to the Attorney General, “the application that was heard remains undetermined, while an application that was no longer live before the Court became the subject of the ruling.”
The Attorney General further submitted that the Court of Appeal retained inherent jurisdiction under Section 3A of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules to correct such an error in order to prevent injustice.
Senior Counsel Fred Ngatia supported the application, telling the court that every superior court possesses inherent powers to recall a decision where an obvious mistake has occurred. He argued that the stay application addressed in the May ruling had become spent after the substantive appeal was determined in February 2023, making it impossible for the court to issue orders on a matter that no longer existed. Ngatia further submitted that the unresolved joinder application had delayed implementation of directions issued by the Supreme Court requiring the remitted appeal to proceed on priority basis.
The application was not opposed by the respondents or the interested parties, who instead asked the court to determine the pending joinder application so that the substantive appeal could proceed without further delay.
In its ruling, the Court of Appeal found that the mistake was beyond dispute.
“It is evident that the fact that there was an error apparent on the record in relation to the ruling delivered on 29th May 2026 is not in contest, for the reason the said ruling was on an application that was not live before the Court,” the judges held.
The bench went on to reaffirm that although the Court of Appeal has limited powers to review its own decisions, it retains residual jurisdiction to intervene where a clear error has resulted in injustice.
“We agree with the conclusion reached in the said decision that this Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice, and that erode public confidence in the administration of justice,” the judges stated.
The judges observed that allowing the erroneous ruling to stand would undermine confidence in the judicial process because the parties had never been heard on the application that the court purported to determine.
“Public confidence in the administration of justice is at stake, since the Court delivered the ruling dated 29th May 2026 on an application which was not live and on which the parties had not been heard,” the court said.
The bench also acknowledged the prompt action taken by counsel in bringing the mistake to the court’s attention.
“We are grateful and appreciative that learned counsel for the appellant and the Attorney General moved with haste to alert the Court of the error apparent on the face of the record, thereby averting the risk of the ruling having unintended adverse effects,” the judges stated.
Consequently, the Court of Appeal set aside its ruling of May 29, 2026, in its entirety, paving the way for the outstanding application to be determined on its merits.
“Given that the instant application arose from an error by the Court, we shall make no order as regards the costs of the application,” the bench ruled.
