David Kili Sawe & another v George Kamau Kimani & another [2020] KECA 206 (KLR)
The bottom line
#Kenya's Court of Appeal refused to re-open its own concluded judgment, confirming that unhappy losing litigants cannot get a second bite at the cherry.
What this practically means
#Executive summary
#Key legal issues
#Existence and scope of the Court of Appeal's residual jurisdiction to review its own concluded judgments
The Court has residual jurisdiction to review its decisions where there is no appeal, but only in exceptional cases where the threshold of injustice, erosion of public confidence and non-appealability is met.
Drawing on Standard Chartered, Benjoh Amalgamated and Kamau James Gitutho, the court confirmed it is clothed with residual jurisdiction to re-open concluded matters, but as it is not the final court, that jurisdiction is exercised cautiously, only in cases whose decisions are not appealable to the Supreme Court, and only to correct errors occasioning real injustice or miscarriage of justice that erodes public confidence in the administration of justice.
Whether the applicants met the threshold for review
The applicants failed to establish any of the three threshold requirements, so the residual jurisdiction could not be invoked.
The court noted that in the impugned judgment it had re-evaluated the evidence from the High Court and was satisfied that fraud was established to the required standard. The applicants did not demonstrate that the court erred in applying the law to the facts, nor that any injustice or miscarriage of justice occurred, nor that public confidence was eroded, nor that the evidence sought to be introduced was new or important.
Application for leave to introduce new evidence and initiate a fresh trial
Leave was refused because the applicants did not show any new or important matter or evidence warranting review.
The respondents contended the 'new evidence' was always available to the applicants, as the persons allegedly possessing it were their neighbours, and that the sale of land was reduced to writing whose terms could not be varied by oral evidence. The court found no new or important matter or evidence was demonstrated and no exceptional circumstances existed to justify review or the introduction of additional evidence.
Legal principles established
#- The Court of Appeal possesses residual jurisdiction to re-open and re-hear a concluded matter, but only where the interest of justice demands.
- The threshold for re-opening a concluded Court of Appeal decision requires: injustice or miscarriage of justice; erosion of public confidence in the administration of justice; and that no appeal lies against the decision.
- The Court will not review its judgments merely because a losing litigant is unhappy.
- The residual jurisdiction to review is exceptional and must be exercised with great caution and circumspection.
Court orders
#- 1.The application dated 28th March, 2019 is dismissed with costs
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 113 of 2015
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal to review its own judgment under section 3A of the Appellate Jurisdiction Act, as explained in its own precedents
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.
- Mboroki (Suing on his behalf and as the legal representative of the Estate of Salome Stephen Mboroki (Deceased) v Mboroki[2023] KEELC 17364 (KLR)10 May 2023applied
Cite this brief
#Cite this brief
Caselaw, "David Kili Sawe & another v George Kamau Kimani & another [2020] KECA 206 (KLR)", Case Analysis (2020). Civil Application No. 35 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/206/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.