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Court of AppealDismissedCivil Application No. 35 of 2019· [2020] KECA 206 (KLR)

David Kili Sawe & another v George Kamau Kimani & another [2020] KECA 206 (KLR)

Court of Appeal of Kenya
6 November 2020
2,347 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal (Okwengu, J. Mohammed and S. ole Kantai, JJ.A) on a notice of motion dated 28th March, 2019 by David Kili Sawe and George Washington Moses Thuku seeking, in effect, to re-open the Court's own judgment of 17th January, 2019 in Civil Appeal No. 113 of 2015. That judgment had allowed the respondents' appeal, overturned the decision of Obaga, J. in the ELC at Kitale, found that the applicants committed fraud in registering the suit property, Waitaluk/Kapkoi Block 4/Waitaluk/166, in the name of the 2nd applicant, and ordered the Land Registrar to cancel the registration and revert the title to the respondents. The applicants sought a stay of execution, review or setting aside of the judgment, and leave to introduce new evidence to initiate a fresh trial, invoking the Court's residual jurisdiction under section 3A of the Appellate Jurisdiction Act. The respondents opposed, contending that the Court was functus officio, that the evidence was not new, and that litigation must come to an end. The Court reviewed its own authorities, including Standard Chartered, Benjoh Amalgamated, Kamau James Gitutho and Daniel Lago Okomo, and restated that it has residual jurisdiction to re-open concluded matters, but only exceptionally, where injustice or miscarriage of justice has occurred, public confidence in the administration of justice has been eroded, and no appeal lies against the decision. It found none of these thresholds met and no new or important evidence demonstrated. The application was dismissed with costs.

Key legal issues

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01

Existence and scope of the Court of Appeal's residual jurisdiction to review its own concluded judgments

Holding

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.

Reasoning

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.

p. 3
02

Whether the applicants met the threshold for review

Holding

The applicants failed to establish any of the three threshold requirements, so the residual jurisdiction could not be invoked.

Reasoning

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.

p. 3
03

Application for leave to introduce new evidence and initiate a fresh trial

Holding

Leave was refused because the applicants did not show any new or important matter or evidence warranting review.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 28th March, 2019 is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A

Cases cited (4)

  • Standard Chartered Financial Services Limited & 2 Others vs Manchester Outfitters (Suiting Division) Limited (Now Known as King Woolen Mills Limited & 2 Others
    [2016] eKLR
  • Benjoh Amalgamated Limited & Another vs Kenya Commercial Bank Limited
    [2014] eKLR
  • Kamau James Gitutho & 3 others v Multiple lcd (K) Limited & another
    [2019] eKLR
  • Daniel Lago Okomo vs Safari Park Ltd & Another
    [2018] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.