Njendu T/A Gitutho Associates & 3 others v Multiple Icd (K) Ltd & another (Civil Application 2 of 2019) [2019] KECA 379 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it will only reopen its own concluded judgments in exceptional cases where real injustice is proven, not where a losing party simply disagrees.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has residual jurisdiction to review, reopen and rehear its own concluded judgment
- 2.Whether the applicants met the threshold for the exercise of that residual jurisdiction, namely that the impugned judgment occasioned injustice or miscarriage of justice that eroded public confidence in the administration of justice and that no appeal lies against the decision
- 3.Whether the alleged errors of law and fact in the judgment of 27th June 2018 justified a review of that judgment
Key legal issues
#Existence and scope of the Court of Appeal's residual jurisdiction to reopen its own concluded judgment
The 2010 Constitution altered the pre-2010 position of absolute finality; the Court of Appeal, though no longer the apex court, has residual jurisdiction to review its decisions to which no appeal lies, to correct errors of law occasioning real injustice.
Before the 2010 Constitution the Court of Appeal was the apex court and its decisions were final, subject only to Rule 35 for correction of clerical or arithmetical errors. The Standard Chartered case held that the new constitutional dispensation justified a departure from absolute finality, conferring residual jurisdiction. However, finality remains a governing principle, and the jurisdiction is to be exercised cautiously, balancing finality and justice.
Whether the applicants established exceptional circumstances or errors on the face of the record warranting review
The applicants failed to establish any of the alleged errors, whether as to variation of the contract, award of interest, privity of the 1st respondent, the counter-claim, or infringement of constitutional rights.
The Court found the applicants had not demonstrated error in the finding that the 8th May 2010 negotiations varied the initial contract, nor in setting aside interest or applying privity of contract to the 1st respondent. The competency of the counter-claim was neither a subject of the appeal nor raised at trial, so it could not ground review. No constitutional infringement was demonstrated.
Whether disagreement with a judgment is a proper basis for its review
Disagreement with the outcome is not a ground for review; the application amounted to inviting the Court to sit in appeal against its own decision.
Citing Daniel Lago Okomo vs Safari Park Hotel Ltd and Mukuru Munge vs Florence Shingi Mwawana, the Court held that the residual jurisdiction is not a vehicle for a dissatisfied litigant to re-litigate issues decided on the merits; such grievances lie, where at all, in an appeal to the Supreme Court under Article 163(4) of the Constitution.
Legal principles established
#- The Court of Appeal has residual jurisdiction to reopen and rehear a concluded matter where the interest of justice demands, but this jurisdiction is exercised cautiously and only in exceptional cases.
- The threshold for exercising the residual jurisdiction to reopen a concluded judgment is threefold and conjunctive.
- The Court of Appeal cannot review its own judgment merely because a losing litigant is dissatisfied; that would amount to sitting on appeal against its own decision, which is beyond its mandate.
Court orders
#- 1.The application dated 4th February 2019 seeking review of the judgment in Civil Appeal No. 77 of 2017 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Civil Appeal No. 77 of 2017
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal to reopen and rehear a concluded matter where the interest of justice demands (as articulated in the Benjoh Amalgamated and Standard Chartered decisions), flowing from the 2010 constitutional dispensation
Relief refused
#Recall and/or reopening of Civil Appeal No. 77 of 2017
The applicants did not meet the requisite threshold for the exercise of the Court's residual jurisdiction
Review, variation or setting aside of the judgment dated 27th June 2018
The applicants failed to establish the alleged errors resulting in injustice or miscarriage of justice; the application amounted to asking the Court to sit on appeal against its own decision
Fresh hearing of Civil Appeal No. 77 of 2017
Follows from the dismissal of the application; the perceived errors were matters for an appeal to the Supreme Court under Article 163(4) of the Constitution
Costs
The application was dismissed with costs to the respondents.
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.
All in all, we find that the application fell short of the requisite threshold to warrant the exercise of this Court’s residual jurisdiction. Accordingly, the application lacks merit and is hereby dismissed with costs.
1) The decision in issue has occasioned injustice or a miscarriage of justice; and 2) The said injustice or miscarriage of justice has eroded public confidence in the administration of justice; and 3) No appeal lies against in the decision in issue.
We do not review judgments just because a losing litigant is unhappy and despondent. We have no jurisdiction to do so.
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.
Issues in the judgment
#The judgment refers to a letter dated 14th May, 2015 in one passage, but the letter discussed in the narrative is dated 14th May, 2010; the 2015 date appears to be a typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 72 (KLR)5 Dec 2025
- Milly Glass Works Limited v Kenya Railways Corporation & another (Civil Application E131 of 2024) [2025] KECA 1136 (KLR)[2025] KECA 1136 (KLR)20 Jun 2025
- Ethics and Anti Corruption Commission v Kenya Broadcasting Corporation & 3 others (Civil Application E060 of 2023) [2025] KECA 873 (KLR)[2025] KECA 873 (KLR)23 May 2025
- Wambui & another v Mwangi (Civil Appeal (Application) E020 of 2021) [2025] KECA 905 (KLR)[2025] KECA 905 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Njendu T/A Gitutho Associates & 3 others v Multiple Icd (K) Ltd & another (Civil Application 2 of 2019) [2019] KECA 379 (KLR)", Case Analysis (2019). Civil Application No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/379/eng@2019-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.