Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd
The bottom line
#Kenya's Court of Appeal refused to reopen a 1998 judgment, confirming that private disputes cannot reach the Supreme Court and old decisions stay closed.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raised a matter of general public importance under Article 163(4)(b)
It did not; the substratum was the validity of a consent order, a matter affecting only the parties and commonplace in litigation.
The Court applied the Steyn v Gnecchi-Ruscone threshold that a matter of general public importance must transcend the parties' interests and impact society or public interest. The validity of a consent order in a private loan dispute affects only the litigating parties, is not unique, and is commonplace in litigation, so certification was refused.
Whether the Court of Appeal has jurisdiction to review its own decisions
The Court has only appellate jurisdiction plus inherent power under rule 1(2); apart from the slip rule in rule 35 there is no apparent jurisdiction to review, but as a non-final court it retains a residual jurisdiction to review where no appeal lies, exercised cautiously.
Tracing jurisdiction from Article 164(3), the Appellate Jurisdiction Act and the Court of Appeal Rules, the Court found no statutory review power comparable to section 80 of the Civil Procedure Act. Pre-2010 case law denied review jurisdiction, but comparative jurisprudence shows a final court has residual jurisdiction in cases of fraud, bias or injustice; as the Court is no longer the final court, a residual jurisdiction exists but must be exercised with circumspection.
Whether the residual jurisdiction should be exercised on the facts
No. The applicants came 14 years late, third-party rights had vested in the suit properties, and the decision predated the 2010 Constitution.
The length of delay and intervening events bear on the balance of justice. The Court would be reluctant to invoke residual review where there is laches or where innocent third parties have acquired vested rights. The titles had been transferred to an untainted third party and charged, and the judgment sought to be reviewed was delivered before the 2010 Constitution.
Legal principles established
#- A matter qualifies for certification under Article 163(4)(b) only where the issue transcends the interests of the parties and impacts on society or bears on public interest.
- The Court of Appeal, not being the final court, has residual jurisdiction to review its own decisions where no appeal lies, to correct errors occasioning real injustice, but only cautiously.
- The Court will not entertain review of decisions made before the 2010 Constitution, nor where there is laches or vested third-party rights.
- Apart from the slip rule in rule 35 of the Court of Appeal Rules, there is no apparent statutory jurisdiction for the Court of Appeal to review its own orders or judgments.
Court orders
#- 1.Application dismissed with costs to the respondent
- 2.Certificate under Article 163(4)(b) of the Constitution declined
- On appeal from
- Court of Appeal
- Civil Appeal No. 276 of 1997
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010 (certification of matters of general public importance) and the Court of Appeal's residual/inherent jurisdiction under rule 1(2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Royal Court Hotel Limited v The Minister for Labour & another[2018] KECA 829 (KLR)16 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd", Case Analysis (2014). Civil Application 16 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/872/eng@2014-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.