Gachuhi & another v Evangelical Mission for Africa & another
The bottom line
#Supreme Court cannot review its own rulings except in four specific situations.
What this practically means
#The Supreme Court dismissed an application to review its earlier ruling. The applicants wanted the court to reconsider its decision striking out their petition. But the court explained it can only review its own decisions in four narrow cases: fraud, deceit, nullity, consent obtained by misleading the court, or a decision based on repealed law. The applicants did not meet any of these conditions. Their request was really an attempt to appeal the court's decision, which is not allowed. The court ordered them to pay the respondents' legal costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application meets the threshold for review of the Supreme Court's ruling of June 30, 2023, under section 21(A) of the Supreme Court Act as settled in Jasbir Singh Rai and Fredrick Otieno Outa.
Key legal issues
#Whether the Supreme Court has jurisdiction to review its own ruling of June 30, 2023, under section 21(A) of the Supreme Court Act.
The court held that the applicants failed to bring their application within any of the four grounds for review under section 21(A) of the Supreme Court Act as settled in Jasbir Singh Rai and Fredrick Otieno Outa.
The court examined the applicants' grounds, which alleged that the Court of Appeal's judgment was based on a non-existent public policy and that the Supreme Court's ruling striking out the appeal was erroneous. The court found that these allegations did not amount to fraud, deceit, nullity, reliance on repealed law, or concealment of a statutory provision. Instead, the application sought to re-argue the merits of the struck-out appeal, making it an appeal disguised as a review.
Legal principles established
#- The Supreme Court cannot sit on appeal over its own decisions.
- Review of a Supreme Court ruling is only allowed for fraud, deceit, nullity, misleading consent, or reliance on repealed law.
- An application disguised as a review but actually re-litigating the case is an abuse of process.
- The four review grounds under section 21(A) of the Supreme Court Act are exhaustive and strictly applied.
- Alleging an error in the Court of Appeal's judgment does not justify a Supreme Court review.
Court orders
#- 1.The notice of motion dated July 28, 2023 and filed on August 2, 2023 is hereby dismissed
- 2.The applicants shall bear the respondents’ costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya
- SC Petition No. E027 of 2023 (original petition struck out on June 30, 2023)
- Jurisdiction invoked
- Section 21A(a) and (d) of the Supreme Court Act and rule 31(1) and (6) of the Supreme Court Rules 2020
Relief refused
#Review of the ruling and orders of this court delivered on June 30, 2023
The applicants did not demonstrate that the impugned ruling was obtained by fraud, deceit, is a nullity, was rendered on repealed law, or that the court was misled into giving it on a mistaken belief of consent.
Reinstatement for hearing of the petition dated March 10, 2023
The application was found to be an appeal disguised as a motion for review, not falling within the review parameters.
Costs
The applicants shall bear the respondents’ 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.
as a general rule, the Supreme Court has neither the jurisdiction to sit on appeal over its own decisions, nor the jurisdiction to review its decisions, other than in the manner contemplated by section 21(A) of the Supreme Court Act
the instant application is an appeal disguised as a motion for review, and therefore does not fall within the confines of the parameters prescribed in the foregoing paragraphs
Key timeline
#Practical implications
#Limit review arguments to section 21(A)
When drafting a review application before the Supreme Court, focus exclusively on the four grounds under section 21(A) of the Supreme Court Act: fraud, deceit, nullity, misleading consent, or reliance on repealed law. Any argument that re-litigates the merits of the original decision will be dismissed as an abuse of process. Cite Jasbir Singh Rai and Fredrick Otieno Outa to show you understand the strict threshold.
Finality of Supreme Court rulings
Once the Supreme Court issues a ruling, it is final. Businesses cannot ask the court to reconsider just because they disagree with the outcome. The only way to challenge a Supreme Court decision is if there was fraud, deceit, or a legal technicality like reliance on a repealed law. Plan your litigation strategy knowing that the Supreme Court is the last stop.
No second chances at Supreme Court
If you lose a case at the Supreme Court, you cannot simply ask for a review because you think the court made a mistake. The court will only reopen a case if there was fraud, deceit, or a serious legal error like using a law that had been repealed. Make sure you present your strongest arguments the first time, because the Supreme Court's decision is usually final.
Frequently asked questions
#Can I appeal a Supreme Court decision in Kenya?+
No. The Supreme Court is the highest court in Kenya. You cannot appeal its decisions. The only way to challenge a Supreme Court ruling is to apply for a review under section 21(A) of the Supreme Court Act, but only on very limited grounds like fraud or reliance on a repealed law.
What are the grounds for reviewing a Supreme Court ruling in Kenya?+
Under section 21(A) of the Supreme Court Act, you can only request a review if: (1) the ruling was obtained by fraud or deceit, (2) the ruling is a nullity, (3) the court was misled into believing the parties consented, or (4) the ruling was based on a repealed law or a deliberately concealed statutory provision.
What happens if my review application does not meet the grounds in Kenya?+
The Supreme Court will dismiss your application as an abuse of process. You will also be ordered to pay the other side's legal costs. The court treats such applications as disguised appeals, which are not allowed because the Supreme Court cannot sit on appeal over its own decisions.
Can I argue that the Court of Appeal made an error to get a Supreme Court review in Kenya?+
No. Arguing that the Court of Appeal's judgment was wrong does not fall within the four grounds for review under section 21(A) of the Supreme Court Act. The Supreme Court will not reconsider the merits of the case. You must show fraud, deceit, nullity, or reliance on a repealed law.
Cite this brief
#Cite this brief
Caselaw, "Gachuhi & another v Evangelical Mission for Africa & another", Case Analysis (2023). Petition (Application) E006 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/109/eng@2023-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.