Kurshed Begum Mirza v Jackton Kaibunga [2020] KECA 739 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot revisit its own decisions except in rare circumstances, dismissing a landowner's attempt to reopen a lost appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction to review its own decisions
The Court has no general power to review its own decisions; review is available only under the Slip Rule (rule 35) for clerical or arithmetical mistakes, or under the limited Supreme Court-endorsed exceptions such as conflicting prior decisions, per incuriam decisions, or judgments obtained by fraud or deceit.
Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act confine the Court to hearing and determining appeals. Rule 35 of the Court of Appeal Rules permits correction only of clerical or arithmetical mistakes or accidental slips. The Supreme Court in Manchester Outfitters, applying Jasbir Singh Rai and Fredrick Otieno Outa, extended review only to circumstances such as conflicting decisions, per incuriam, or fraud. The applicant established none of these.
Whether an error apparent on the face of the record warranted review
The complaints that a sale agreement was unsigned and that the deceased's signature was forged did not constitute clerical or arithmetical errors under rule 35 nor any of the exceptional grounds for review, and in any event should have been raised by counsel in the trial court and on appeal.
The applicant alleged that her advocate conducted the appeal slovenly, that one sale agreement was unsigned and that the respondent forged her late husband's signature. The Court found these were not clerical or arithmetical errors within rule 35, and it was not shown that conflicting decisions existed, that the judgment was per incuriam, or that it was procured by fraud, deceit, judicial incompetence, reliance on a repealed law or concealed statutory provision.
Legal principles established
#- The Court of Appeal's jurisdiction is limited to hearing and determining appeals; review of its own orders is confined to the Slip Rule (clerical or arithmetical errors) or variation of single-judge orders, except in the limited circumstances identified by the Supreme Court such as conflicting prior decisions, per incuriam decisions, or judgments obtained by fraud or deceit.
Court orders
#- 1.The Motion dated 10th May 2019 is dismissed
- 2.Each party to bear their own costs
- On appeal from
- Court of Appeal at Malindi (Visram, Karanja & Koome, JJA.)
- Malindi ELC Suit No. 147 of 2014
- Jurisdiction invoked
- Sections 3(2) and 3A of the Appellate Jurisdiction Act and rules 1(2) and 42 of the Court of Appeal Rules; Articles 25(c), 50(1) and 159(2)(d) of the Constitution; order 9 rule 9 of the Civil Procedure Rules
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.
- Gitonga (Suing as the legal representative of the Estate of the Late M'Ithinji M'Mwambia alias Fredrick M'Ithinji – Deceased) v Nkirote & another[2023] KEELC 20482 (KLR)4 Oct 2023applied
Cite this brief
#Cite this brief
Caselaw, "Kurshed Begum Mirza v Jackton Kaibunga [2020] KECA 739 (KLR)", Case Analysis (2020). Civil (Appeal) Application No. 88 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/739/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.