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Court of AppealDismissedCivil Appeal (Application) No. 188 of 2012 (R 1/2016)· [2018] KECA 116 (KLR)

Niels Bruel v Moses Wachira & 2 others [2018] KECA 116 (KLR)

Court of Appeal
12 October 2018
William OukoW. OukoSKS. Gatembu KairuKMK. M'inoti
2,868 words in judgment
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The bottom line

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The Court of Appeal refused to reopen its own judgment and declined to send the dispute to the Supreme Court, confirming that losing parties cannot get a second chance just by claiming a decision was wrong.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Ouko, PCA; Gatembu Kairu and M'inoti, JJ.A) determines a motion by Niels Bruel seeking, alternatively, review of the Court's own judgment of 5th February 2016 in Civil Appeal No. 188 of 2012, or a certificate that his intended appeal to the Supreme Court raises a matter of general public importance under Article 163(4)(b) of the Constitution. The underlying dispute concerned two aircraft sale agreements between Bruel and Moses Wachira, in which Okwengu J found misrepresentation and breach, and the Court of Appeal had dismissed both the appeal and cross-appeal without orders on costs. The applicant argued that the Court had failed to re-evaluate the evidence as required on a first appeal, ignored the distinction between rescission and repudiation, and determined the appeal on unpleaded fraud. The Court held that although it possesses residual jurisdiction to re-open a concluded appeal, that jurisdiction is exceptional and must be exercised sparingly; it found that the judgment had carefully considered the evidence, that the length of a judgment is immaterial, and that the applicant's real complaint was simply that the judgment was wrong, which is not a ground for review. On certification, the Court applied the Supreme Court's principles that a matter of general public importance must transcend the particular case with a significant bearing on the public interest, and that factual disputes and mere apprehension of miscarriage of justice do not qualify. Both prayers were refused and the notice of motion was dismissed with costs.

Key legal issues

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01

Residual jurisdiction of the Court of Appeal to review its own concluded judgment

Holding

The jurisdiction exists but is exceptional and must be exercised sparingly and with circumspection; it is not available to parties who merely seek a second bite of the cherry or who allege the judgment was wrong.

Reasoning

Following Benjoh Amalgamated, a court of final resort has residual jurisdiction to re-open decided matters in cases of fraud, bias or other injustice. That jurisdiction must be balanced between the finality principle (public interest in conclusiveness of litigation) and the justice principle (doing justice and maintaining public confidence). The applicant's complaint amounted only to saying the judgment was wrong, which does not justify review.

p. 3
02

Duty of a first appellate court to re-evaluate evidence

Holding

The Court reaffirmed the Selle v Associated Motor Boat Co retrial principle but held there is no fixed methodology; the length of a judgment is immaterial so long as the evidence was carefully considered and weighed.

Reasoning

Relying on Selle and Coghlan v Cumberland, the Court held that on a first appeal it must reconsider the evidence and draw its own conclusions with due allowance for not having seen or heard the witnesses. The judgment here had considered each party's case and the evidence in its paragraphs; nothing turns on the fact that it was shorter than the trial judgment, and a first appellate court need not merely regurgitate the evidence.

p. 3
03

Certification of an appeal to the Supreme Court under Article 163(4)(b)

Holding

Certification requires a matter of general public importance transcending the particular case with significant bearing on the public interest; factual disputes and mere apprehension of miscarriage of justice do not qualify.

Reasoning

Applying the Supreme Court's principles in Herman Phillipus Steyn, Malcome Bell, Ngoge and Koinange Investments, the Court noted that determinations of fact are not a proper basis for certification; only exceptional cases raising cardinal issues of law or jurisprudential moment deserve certification; and the jurisdiction is not for rectifying errors on settled law. The applicant's grounds were a disguise for the complaint that the decision was wrong.

p. 3

Legal principles established

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  • The Court of Appeal's jurisdiction to re-open and review its own concluded appeal is exceptional, to be exercised sparingly and with circumspection, and a party's mere assertion that the judgment is wrong is not a legitimate ground for review
  • There is no set formula for the re-evaluation of evidence on a first appeal; the critical question is whether the first appellate court carefully considered and weighed the evidence, not whether it regurgitated it in a long judgment
  • A matter of general public importance for certification is one whose determination transcends the circumstances of the particular case with significant bearing on the public interest, and any point of law involved must be substantial
  • A mere complaint that the Court's decision is wrong is not a ground for issuing a certificate to appeal to the Supreme Court

Court orders

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  1. 1.The prayer for review and re-opening of the Court's judgment of 5th February 2016 is dismissed
  2. 2.The notice of motion dated 7th March 2016 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 163(4)
  • Constitution of Kenya, 2010Article 20(3)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 163
  • Constitution of Kenya, 2010Article 259
  • Supreme Court ActSection 16(2)

Cases cited (12)

  • Selle & Another v Associated Motor Boat Co Ltd & Others
    [1968] EA 123
  • Aroni Sure & 9 Others v. Gesare Nyanaiko
    [1988] eKLR
  • Ngugi Holdings Ltd v. Joseph Kamau Mwangi
    [2009] eKLR
  • Benjoh Amalgamated Ltd & Another v. Kenya Commercial Bank Ltd
    [2014] eKLR
  • Standard Chartered Financial Services Ltd & 2 Others v. Manchester Outfitters Ltd
    [2016] eKLR
  • Commission on Administrative Justice v. Attorney General
    HC Pet. No. 242 of 2012
  • Herman Phillipus Steyn v. Giovanni Gnecci-Ruscone
    [2013] eKLR
  • Ladd v. Marshall
    [1954] 3 ALL ER 745
  • Malcome Bell v. Daniel Toroitich arap Moi & Others
    [2013] eKLR
  • Coghlan v. Cumberland
    [1898] 1 Ch 704
  • Peter Odour Ngoge v. Hon Francis ole Kaparo & 5 Others
  • Koinange Investments & Development Ltd v. Robert Nelson Ngethe
    [2013] eKLR
On appeal from
Court of Appeal
Civil Appeal No. 188 of 2012
Jurisdiction invoked
Inherent/residual jurisdiction of the Court of Appeal to review its own judgment; alternative prayer for certification under Article 163(4)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Niels Bruel v Moses Wachira & 2 others [2018] KECA 116 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 188 of 2012 (R 1/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/116/eng@2018-10-12

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