Phillip Muchiri Mugo v Mbeu Kithakwa [2019] KECA 207 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can review its own judgments, but only to fix obvious errors causing real injustice — this application failed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to review its own judgment
- 2.Whether there is an error on the face of the judgment in that the trial court was unaware the original plaintiff had died
- 3.Whether the applicant disclosed new evidence, namely the consent order of 21st August 1995 and the decree of 5th October 1995, omitted from the record of appeal
- 4.Whether the applicant would suffer irreparable loss if the judgment is not reviewed
Key legal issues
#Whether the Court of Appeal has jurisdiction to review its own judgment
The Court has residual jurisdiction to review its decisions, to be exercised cautiously to correct errors of law occasioning real injustice.
The court, relying on its prior decision in Benjoh Amalgamated and Standard Chartered Financial Services v Manchester Outfitters, confirmed that as the Court of Appeal is not the final court, its review jurisdiction is residual and limited to correcting errors of law that occasion real injustice or miscarriage of justice, eroding public confidence in the administration of justice.
Whether the alleged error on the face of the judgment - that the trial court was unaware of the plaintiff's death - warranted review
No: the Court of Appeal had expressly considered the death and held the suit had abated by operation of law, so no error was disclosed.
The court found the death of the original plaintiff was known and considered in the 2014 judgment. Even if the trial judge had known of the death, the suit had already abated under Order 24 rule 3(2). The applicant, not the deceased plaintiff's side, bore responsibility for non-disclosure during the ex parte proceedings.
Whether the consent order of 21st August 1995 and decree of 5th October 1995 constituted new evidence justifying review
No: the consent and decree were considered by the trial court and were not newly discovered evidence, and their connection to the suit property was not established.
The trial court's ruling of 26th February 2009 showed the judge had considered the consent. Further, the consent order referred to parcel Inoi/Kerugoya/763, not Inoi/Kerugoya/769, and the underlying arbitration award was not exhibited, so the court could not link the documents to the impugned judgment.
Legal principles established
#- The Court of Appeal has residual jurisdiction to review its own decisions, but only to correct errors of law that have occasioned real injustice, and the jurisdiction must be exercised cautiously.
- A review may only be granted to correct an apparent, self-evident error or omission, not merely because a different conclusion would have been reached on the same facts.
- A party's failure to disclose a material fact such as the death of a litigant to a trial court proceeding ex parte cannot found a review where the appellate judgment already took that fact into account.
Court orders
#- 1.The Notice of Motion dated 11th February 2015 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nyeri
- Civil Appeal No. 121 of 2010
- Jurisdiction invoked
- Inherent residual jurisdiction of the Court of Appeal to review its own decisions (per Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited)
Relief refused
#Review of the judgment and orders of the Court of Appeal delivered on 30th June 2014
No self-evident error of law was identified and no new cogent evidence was disclosed; the application was also filed after an inordinate delay of eight months
Costs
The application was dismissed with costs (costs awarded to the respondent).
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.
It is our finding that this Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence in the administration of justice.
The grounds for review are: errors of law that have occasioned real injustice or failure or miscarriage of justice thereby eroding public confidence in the administration of justice.
The error or omission must be self-evident and should not require an elaborate argument to be established.
The Notice of Motion dated 11th February, 2015 be and is hereby dismissed with costs.
Issues in the judgment
#The judgment inconsistently dates the impugned judgment as 30th June 2014 in most passages but refers to it as delivered on 30th April 2014 in one passage.
The quoted High Court ruling of 17th October 2008 is referred to in the quoted extract as being dated 17th October 2009 in one line, while the rest of the judgment uses 17th October 2008.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phillip Muchiri Mugo v Mbeu Kithakwa [2019] KECA 207 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 121 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/207/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.