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Court of AppealDismissedCivil Appeal (Application) No. 270 'A' of 2015· [2020] KECA 850 (KLR)

Landbank Real Estate Investment Trust Limited v Sichuan Huashi Enterprises Corporation East Africa Limited (Civil Appeal (Application) 270 ‘A’ of 2015) (Civ) [2020] KECA 850 (KLR)

Court of Appeal
6 March 2020
2,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to review its own injunction decision, confirming reviews are only allowed for clerical errors, fraud, or other rare exceptional circumstances.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Gatembu and Murgor, JJ.A) dismissing Landbank Real Estate Investment Trust Limited's Notice of Motion dated 24th July 2017 seeking review of the same Court's judgment of 9th June 2017, which had upheld a High Court injunction restraining Standard Chartered Bank (Kenya) Limited from paying out Bid Bond sums secured by Sichuan Huashi Enterprises Corporation East Africa Limited. The underlying dispute arose from a tender for the construction of a boundary wall and guard house on Landbank's property in Kamulu. Landbank awarded the tender by a letter marked 'subject to contract', then annulled it and called the Bid Bond after Sichuan Huashi raised concerns about the contract terms and the proposed performance security. The High Court granted a temporary injunction, and the Court of Appeal affirmed, finding a prima facie case and irreparable damage. On review, the applicant argued that errors of law and fact appeared on the face of the record, contending that acceptance of the tender created a valid contract. The Court held that its jurisdiction is confined to appeals, and review of its own decisions lies only under the slip rule for clerical or arithmetical mistakes or in the narrow exceptional circumstances identified by the Supreme Court in Manchester Outfitters, applying Jasbir Singh Rai and Fredrick Otieno Outa - per incuriam decisions, conflicting past decisions, fraud, nullity or reliance on repealed law. Whether a contract crystallised was a merits issue pending before the trial court. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Court of Appeal can review its own decision and on what grounds

Holding

The Court can review its own decision only in narrow circumstances: clerical or arithmetical mistakes under rule 35 (the slip rule), or the exceptional grounds identified by the Supreme Court in Manchester Outfitters, including per incuriam decisions and judgments obtained by fraud or deceit.

Reasoning

Article 164(3) and section 3 of the Appellate Jurisdiction Act confine the Court to appeals, with rule 35 permitting correction only of clerical or arithmetical mistakes or accidental slips. The Supreme Court in Manchester Outfitters, applying Jasbir Singh Rai and Fredrick Otieno Outa, expanded review only to situations meeting the ends of justice, such as per incuriam decisions or judgments that are nullities. Substantive disagreements about whether a contract crystallised are matters for the trial court, not review.

p. 3
02

Whether the applicant's grounds - errors of law and fact on the face of the record and the alleged existence of a contract - warrant review

Holding

They do not. The alleged errors are not clerical or arithmetical, nor was the judgment tainted by fraud, deceit, incompetence, consent mistaken belief, a repealed law or concealed statutory provision.

Reasoning

The applicant argues that acceptance of the tender created a valid contract so no prima facie case existed. The respondent denies a contract because the bid was subject to contract. The Court held these are contested merits issues pending before the trial court; a party cannot use a review application to have the Court sit on appeal over its own interlocutory decision or re-argue the merits.

p. 3

Legal principles established

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  • The Court of Appeal's jurisdiction is limited to hearing and determining appeals; reviews of its own orders or judgments lie only in specific circumstances - under the slip rule for clerical or arithmetical errors, and, per the Supreme Court in Manchester Outfitters, limited exceptional circumstances such as per incuriam decisions, conflicting past decisions, or judgments obtained by fraud, deceit or nullity

Court orders

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  1. 1.The motion for review dated 24th July 2017 is dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 164(3)
  • Appellate Jurisdiction ActSection 3
  • Court of Appeal RulesRule 35(1)
  • Court of Appeal RulesRule 57(1)

Cases cited (3)

  • Manchester Outfitters (Suiting Division) Limited (Now known as King Woollen Mills Limited & 2 others vs Standard Chartered Financial Services Limited & 2 others
    Supreme Petition No. 6 of 2015
  • Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai Estate & 4 others
    SC Petition No. 4 of 2012; [2013] eKLR
  • Fredrick Otieno Outa vs Jared Odoyo Okello & 3 others
    [2017] eKLR
On appeal from
Court of Appeal
HCCC No. 381 of 2015
Jurisdiction invoked
Article 164(3) of the Constitution; Section 3 of the Appellate Jurisdiction Act; rules 35(1) and 57(1) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Landbank Real Estate Investment Trust Limited v Sichuan Huashi Enterprises Corporation East Africa Limited (Civil Appeal (Application) 270 ‘A’ of 2015)  (Civ) [2020] KECA 850 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 270 'A' of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/850/eng@2020-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.