County Assembly of Migori v Aluochier & 2 others
The bottom line
#Supreme Court cannot review its own decisions except for fraud, nullity, or mistake of law.
What this practically means
#The County Assembly of Migori tried to get the Supreme Court to reverse its earlier decision that threw out their appeal. The Court said no, because only very limited reasons—like fraud or a hidden law—allow a review. The Court also clarified that under current rules, you must include the Court of Appeal's full reasoning when appealing. This strict approach means parties must follow every procedural step carefully.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Motion dated 1st November 2023 falls within the parameters for review of this Court's decisions as enunciated in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others
- 2.Whether this Court should depart from its previous decisions in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others and Richard Nyagaka Tongi v Chris Munga N Bichage & 2 others on the requirement to include reasons for the judgment of the Court of Appeal in the record of appeal
- 3.Whether the Motion dated 24th November 2023 seeking abeyance and leave to file a supplementary record of appeal can stand
Key legal issues
#Whether the Supreme Court can review its own decision striking out a petition for failure to include reasons for the Court of Appeal judgment
The Court cannot review its decision because the application did not meet the exceptional circumstances for review under Section 21(A) of the Supreme Court Act as interpreted in Fredrick Otieno Outa's case.
The Court reiterated that its power to review its own decisions is limited to four grounds: fraud or deceit, nullity, mistaken belief of consent, or reliance on a repealed law or deliberately concealed statutory provision. The appellant did not attempt to demonstrate any of these grounds. The Court found that the Motion was based on a disagreement with the ruling, not on any of the recognized review grounds, and therefore dismissed it.
Whether the Supreme Court is bound by its previous decisions in Fahim Yasin Twaha and Richard Nyagaka Tongi that reasons for the Court of Appeal judgment were not mandatory for lodging an appeal
The Court is not bound by its previous decisions under Article 163(7) of the Constitution, and the change in the Rules from the 2012 Rules to the 2020 Rules made reasons mandatory under Rule 40(1).
The Court acknowledged that under Article 163(7) it is not bound by its previous decisions. It distinguished the earlier cases on the basis that they were decided under the Supreme Court Rules, 2012, which did not require reasons. The Supreme Court Rules, 2020, specifically Rule 40(1), now require the judgment or ruling of the Court of Appeal to be included. The Court therefore affirmed its ruling in Jimi Wanjigi v Chebukati & 2 others that reasons are mandatory.
Whether the Motion dated 24th November 2023 seeking abeyance and leave to file a supplementary record of appeal can stand after the main petition was struck out
The Motion cannot stand because once the petition and cross-appeal were struck out, all subsequent pleadings lack a basis.
The Court reasoned that the striking out of the petition and cross-appeal removed the foundation for any further pleadings. The Motion for abeyance and leave to file a supplementary record was dependent on the existence of the main appeal. Since the appeal no longer existed, the Motion was also dismissed.
Legal principles established
#- The Supreme Court’s power to review its own decisions is limited to four grounds: fraud, nullity, mistaken consent, or reliance on a repealed or concealed law.
- Under the Supreme Court Rules 2020, including the Court of Appeal’s reasons in the record of appeal is mandatory.
- The Supreme Court is not bound by its own previous decisions; it can change its interpretation when rules are updated.
- Once a main appeal is struck out, any subsequent motions dependent on that appeal automatically fail.
- A party cannot use a review application simply because they disagree with the ruling—they must show one of the four exceptional grounds.
Court orders
#- 1.The Notice of Motion dated 1st November 2023 is hereby dismissed.
- 2.The Notice of Motion dated 24th November 2023 is hereby dismissed.
- 3.Each party shall bear its costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya
- Jurisdiction invoked
- Articles 163(4)(a) and 159(2)(d) of the Constitution; Sections 3, 3A, 15A, 21(4), 21A, and 23(2B)(d) of the Supreme Court Act, 2011; Rules 3(1), (2), (3), (5), 28(5) and 31 of the Supreme Court Rules, 2020
Relief refused
#Review and setting aside of the ruling and order of the Supreme Court dated 27th October 2023 striking out the petition
The Motion does not fall within the parameters for review enunciated in Fredrick Otieno Outa's case
Order to keep in abeyance the hearing and determination of the Motion dated 1st November 2023 and leave to file supplementary record of appeal
Once the petition of appeal and cross-appeal were struck out, all subsequent pleadings lack a basis to stand on
Costs
Each party shall bear its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(A) of the Supreme Court Act
it is our considered view that the Motion dated 1st November 2023 does not fall within the parameters enunciated in Fredrick Otieno Outa's case (supra) and therefore the Motion is one for dismissal for those reasons alone
Key timeline
#Practical implications
#Strict review grounds confirmed
When seeking a review of a Supreme Court decision, you must explicitly plead and prove one of the four grounds under Section 21(A) of the Supreme Court Act. Disagreement with the ruling is not enough. Also, always include the full Court of Appeal judgment (with reasons) in the record of appeal under the 2020 Rules, or risk striking out.
Procedural precision is critical
If your business is involved in an appeal to the Supreme Court, ensure your legal team provides the complete Court of Appeal judgment, including reasons. Missing this step can end your appeal immediately. Once an appeal is dismissed, later attempts to fix it through motions are unlikely to succeed unless you meet the very narrow review grounds.
Limited chances to reopen cases
As an individual, if the Supreme Court decides against you, you have almost no way to reopen that decision unless you can prove fraud, deceit, or that the court relied on a law that had been repealed. Simply arguing that the court made a mistake won't work. Always ensure your initial appeal is complete and correct.
Frequently asked questions
#Can the Supreme Court of Kenya review its own decisions?+
Yes, but only in very limited situations: fraud or deceit, if the decision is a nullity, if the court mistakenly believed both sides consented, or if it relied on a repealed or deliberately concealed law. Disagreement with the ruling is not enough.
What are the grounds for review of a Supreme Court judgment in Kenya?+
The four grounds under Section 21(A) of the Supreme Court Act are: (1) fraud or deceit, (2) nullity, (3) mistaken belief that both parties consented, or (4) reliance on a repealed law or a deliberately concealed statutory provision. These are strictly applied.
Is it mandatory to include reasons for the Court of Appeal judgment when appealing to the Supreme Court of Kenya?+
Yes, under Rule 40(1) of the Supreme Court Rules 2020, you must include the full judgment or ruling of the Court of Appeal, including its reasons. Failing to do so can lead to your appeal being struck out, as happened in this case.
What happens to other motions if the main appeal is struck out in Kenya's Supreme Court?+
Once the main appeal or petition is struck out, any subsequent motions that depend on that appeal also lose their legal basis. They will be dismissed automatically, as the Court found in this case.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sehmi & another v Tarabana Company Ltd & 5 others[2026] KESC 39 (KLR)19 Jun 2026
- Equip Agencies Limited & another v Gitau & 3 others (Sued as Office Bearers of Gilgil Total Investors Self Help Group) & 4 others (Environment and Land Case 89 of 2024) [2026] KEELC 3124 (KLR)[2026] KEELC 3124 (KLR)21 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "County Assembly of Migori v Aluochier & 2 others", Case Analysis (2024). Petition (Application) E015 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/7/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.