Bank of Baroda (Kenya) Limited v Margaret Njeri Muiruri [2019] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal refused the Bank of Baroda's request to review its own 2014 judgment, confirming that review cannot be used to re-argue a lost case.
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 decision in the circumstances
- 2.Whether the Court found erroneously that section 44 of the Banking Act applied to interest rates charged by the applicant
- 3.Whether the question of interest and section 44 of the Banking Act were in issue in the High Court proceedings and in the appeal before this Court
- 4.Whether this is an appropriate case to exercise the residual jurisdiction of review
Key legal issues
#Whether the issue of interest and compliance with section 44 of the Banking Act was before the High Court and this Court
The Court held that the issue of interest and section 44 compliance did arise and was canvassed in the pleadings, evidence and judgment of the High Court, and was determined on appeal; the applicant's contrary claim fails.
The agreed list of issues included whether the applicable interest was agreed between the Bank and the borrower; PW1 testified the interest was not per the agreement; the Bank's own witness was unaware of ministerial approval; and the trial judge expressly addressed section 44 of the Banking Act in submissions and found the rate exorbitant and morally wrong. The Court of Appeal's 2014 judgment therefore dealt with matters actually raised on the record.
Whether the residual review jurisdiction should be exercised on these facts
Review was refused: the applicant failed to demonstrate error, misdirection or apparent injustice in the exercise of the Court's discretion; the application sought to re-argue the merits.
Applying the Wambora principles drawn from Mbogo v Shah, review is an equitable remedy, not an appeal. The applicant's real intention was another bite at the cherry. No basis was laid showing the limited Bench misdirected itself or acted whimsically, so the finality principle and the principles governing review required dismissal of the application.
Legal principles established
#- The Court of Appeal, not being the final court, has residual jurisdiction to review its own decisions to correct errors of law that occasion real injustice, to be exercised cautiously where it promotes public interest and public confidence in the rule of law.
- Review of an exercise of discretion is not a right but an equitable remedy requiring the applicant to lay a basis showing the court erred or acted whimsically; it is not an opportunity to re-argue the case.
- The review jurisdiction cannot be used to give an applicant a second bite at the cherry or to re-litigate the substantive case.
Court orders
#- 1.The applicant's application dated 17th December, 2014 seeking review of the judgment of 10th October 2014 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 282 of 2004
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 42(1) of the Court of Appeal Rules - residual jurisdiction to review its own decisions
Relief refused
#Review, setting aside and substitution of the judgment of 10th October 2014 with an order dismissing the respondent's appeal with costs
The applicant did not satisfy the guiding principles for review; the issues were in fact before both courts and the application amounts to a second bite at the cherry
Costs
The application is dismissed with costs 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.
We are of the considered view that this is not an appropriate case for this Court to exercise its residual jurisdiction of review of its own decision as the applicant has not satisfied the required principles.
Consequently, the applicant's application dated 17th December, 2014 is hereby dismissed with costs to the respondent.
It appears to us that the applicant's real intention in their current application is to have another bite at the cherry, which cannot be entertained in an application for review.
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
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Stanbic Bank Kenya Ltd v Santowels Ltd[2024] KESC 31 (KLR)28 Jun 2024applied
- Mbui v Mutuku & 2 others (Environment & Land Case 71 of 2014) [2022] KEELC 3375 (KLR)[2022] KEELC 3375 (KLR)27 Jul 2022
- Hussein Ali Benyoka v Kaydee Quarry Ltd [2019] KEELC 4064 (KLR)[2019] KEELC 4064 (KLR)29 Mar 2019applied
- Amos Kipkorir Buttit & 2 others v Bank of Africa Kenya Ltd [2017] KEELC 2171 (KLR)[2017] KEELC 2171 (KLR)28 Jul 2017
- Serraco Limited v Attorney General [2016] KECA 2 (KLR)[2016] KECA 2 (KLR)25 Nov 2016
Cite this brief
#Cite this brief
Caselaw, "Bank of Baroda (Kenya) Limited v Margaret Njeri Muiruri [2019] KECA 251 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 282 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/251/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.