Ushago Diani Investment Limited v Jabeen Manan Abdulwahab [2019] KECA 50 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reopen its own final judgment, confirming you cannot use review to raise arguments you never pleaded in court.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's residual jurisdiction to review its own judgment
The jurisdiction is residual, limited and must be exercised with circumspection, only in exceptional cases such as fraud, bias or other injustice, and only where the decision is not appealable to the Supreme Court.
Drawing on Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd, the Court noted the tension between the finality principle, which serves public interest and conclusiveness of litigation, and the justice principle. Review of a final appellate judgment is not a second appeal; where an appeal to the Supreme Court is available, that is the proper avenue.
Whether alleged omissions in the judgment warranted review
No. The matters the applicant complained of were either determined in the judgment, or never pleaded before the High Court or the Court of Appeal; the applicant sought to introduce a new cause of action through review.
The applicant's suit had been dismissed in full and the counterclaim dismissed, so there was nothing capable of execution. The claim for damages for wrongful attachment and sale of property was not a matter before either court below, and could not be smuggled in by way of review.
Legal principles established
#- The Court of Appeal has only a limited residual jurisdiction to review its own decisions, which must be invoked with circumspection and only in decisions not appealable to the Supreme Court, typically in cases of fraud, bias or other injustice.
- After passing judgment a court becomes functus officio and cannot revisit the judgment on the merits save as provided by law.
Court orders
#- 1.The applicant's application for review dated 21st December 2018 and presented on 24th December 2018 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Court of Appeal at Malindi
- Civil Appeal No. 60 of 2018
- Jurisdiction invoked
- Residual inherent jurisdiction of the Court of Appeal to review its own decisions, invoked under provisions of the Civil Procedure Act and Civil Procedure Rules which the Court noted do not apply to it
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.
- NMS v TS (Civil Application E076 of 2024) [2025] KECA 774 (KLR)[2025] KECA 774 (KLR)9 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "Ushago Diani Investment Limited v Jabeen Manan Abdulwahab [2019] KECA 50 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 60 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/50/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.