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Court of AppealDismissedCivil Appeal (Application) No. 73 of 2015· [2017] KECA 28 (KLR)

Grace Kamene M'berece v Joyce Rigiri W/o David Mbogori & 1 other

Court of Appeal
20 December 2017
1,572 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will only rarely reopen its own judgments, and never to fix a party's own failure to present evidence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kariuki, Sichale and ole Kantai, JJA) dismissing an application by Joyce Rigiri and John Mbogori seeking review of the Court's own judgment of 29th June 2016 in Civil Appeal No. 73 of 2015, delivered by Waki, Nambuye and Kiage, JJA, in which they were respondents and Grace Kamene M'berece the successful appellant. The applicants argued, under Rule 35 of the Court of Appeal Rules, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution, that the prior judgment overlooked Chief Magistrate's Court Case No. LDT 24 of 2002, and that this constituted an error apparent on the face of the record or a sufficient reason for review, relying on Vallabhdas Karsandas Raniga and Benjoh Amalgamated. M'berece opposed, contending the tribunal matter had in fact been considered and that, in any event, the elders lacked jurisdiction. The Court found the alleged error misplaced: its prior judgment had expressly recorded that neither party brought the outcome of the tribunal matter to the High Court's or this Court's attention. It applied Benjoh Amalgamated, reaffirming that the Court, not being the final court, retains a residual jurisdiction to review its decisions to correct errors of law occasioning real injustice, but that jurisdiction is exercised cautiously and sparingly, and will be refused where there is laches or where a party seeks through review to do what it had the opportunity to do but failed to do through indolence or incompetence. No miscarriage of justice was shown. The application was dismissed with costs to the respondents. Judgment dated 20th December 2017.

Key legal issues

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01

Whether the alleged failure to consider Chief Magistrate's Court Case No. LDT 24 of 2002 amounted to an error apparent on the face of the record

Holding

No. The prior judgment expressly addressed the tribunal matter, holding that neither party had brought its outcome to the Court's attention; the alleged error was therefore misplaced

Reasoning

The Court compared the applicant's complaint against its own prior judgment, which had quoted that neither party made the outcome of Meru District Land Tribunal Case No. 24 of 2002 known to the High Court or this Court. Since the applicants had the opportunity to place the material before the courts and failed to do so, review could not be used to cure their indolence.

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02

The scope of the Court of Appeal's residual jurisdiction to review its own decisions after the 2010 Constitution

Holding

The Court has residual jurisdiction, not being the final court, to review its decisions to correct errors of law occasioning real injustice or miscarriage of justice, exercised cautiously and sparingly; no such miscarriage was shown here

Reasoning

Relying on Benjoh Amalgamated, the Court set out the parameters of review: prior to the 2010 Constitution the Court lacked power to review its own decisions beyond the slip rule; now, as a non-final court, it retains a cautious residual jurisdiction exercised only in the public interest and where there is miscarriage of justice. The application disclosed no error of law occasioning failure of justice.

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Legal principles established

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  • The Court of Appeal has residual jurisdiction to review its own decisions where there is no appeal, but only to correct errors of law occasioning real injustice or miscarriage of justice, exercised cautiously and sparingly
  • The Court will not exercise its residual review jurisdiction where there is laches or where vested rights of innocent third parties would be affected, and will not review decisions made before the 2010 Constitution
  • A party cannot reopen a concluded matter under the guise of review by seeking to do what it had the opportunity to do but failed to do through indolence or incompetence
  • In an adverse possession claim, the burden of showing that time stopped running rests on the registered proprietor whose title is under challenge

Court orders

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  1. 1.The application for review is dismissed with costs to the respondents
On appeal from
Court of Appeal
Civil Appeal No. 73 of 2015
Jurisdiction invoked
Rule 35 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9); Article 159(2)(d) of the Constitution of Kenya (2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Kamene M'berece v Joyce Rigiri W/o David Mbogori & 1 other", Case Analysis (2017). Civil Appeal (Application) No. 73 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/28/eng@2017-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.