Judgment No. SC 10/18 Criminal Appeal SC 185/14 ISSUE FOR DETERMINATION The issue for determination by this Court is whether the court a quo erred in applying r 449 to set aside the decision given earlier by another judge of the same jurisdiction. THE LAW Rule 449 of the High Court rules provides: “449. Correction, variation and rescission of judgments and orders (1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order – (a) that was erroneously sought or erroneously granted in the absence of any party affected thereby;” (my emphasis) This appeal relates to the propriety of the application of r 449 by the court a quo in HH154/14. It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “functus officio” applies to the court or judicial officer concerned. Rule 449 is an exception to that principle and allows a court to revisit a decision that it has previously made, but only allows it in restricted circumstances. In Tiriboyi v Nyoni & Another HH117/2004 the following was stated: “The purpose of r 449 appears to me to (be to) enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.” (my emphasis). 4