Wiper Democratic Movement v Moturi; Geni (Interested Party)

Court of Appeal

8 July 2022

PKP. O. Kiage HOH. A. Omondi FTF. Tuiyott

1,004 words in judgment

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The bottom line

Kenya's Court of Appeal refused Wiper's bid to review its own election judgment, confirming review is only for rare cases showing fraud or bias.

What this practically means

Executive summary

This ruling of the Court of Appeal at Kisumu (Kiage, Omondi and Tuiyott, JJA) disposes of an application by Wiper Democratic Movement seeking review, setting aside and/or stay of the court's own judgment of 22nd June, 2022, delivered under Rule 32(5) of the Court of Appeal Rules (2010) with reasons to follow. The underlying appeal had allowed Moturi's challenge to Ochieng, J.'s decision that the Political Parties Disputes Tribunal lacked jurisdiction, set aside the High Court judgment and decree, and restored in entirety the Tribunal's judgment of 15th May, 2022, with costs to the appellant. Wiper, which had not been a party to the High Court proceedings, sought review on grounds including improper service, an unsigned and unauthentic letter, an incorrect email address, its non-participation at the High Court, and an incomplete record; it also sought reinstatement of the Interested Party as the nominated candidate for North Mugirango Constituency. The respondent opposed, contending the court lacked review jurisdiction and that the application fell outside the exceptionally narrow grounds. The court applied its recent decision in Jemnyango Moses Kamali, holding that residual review jurisdiction must be invoked with circumspection and only in rare cases demonstrating fraud, bias or other injustice, balanced against finality and public interest. Finding that the matters raised were argued and fully considered in the appeal, that no scintilla of bias or fraud was shown, and that applying for review before reasons were delivered was premature and preposterous, the court dismissed the application with costs to the respondent.

Key legal issues

Threshold for review of the Court of Appeal's own decision

Holding

Review jurisdiction is residual, invoked with circumspection and only in very rare cases where fraud, bias or other injustice is demonstrated, balanced against finality and public interest

Reasoning

The court adopted its recent statement in Jemnyango Moses Kamali v Abdisalam Hassan Abdi, which itself relied on Benjoh Amalgamated and Ushago Diani. The applicant raised matters that were central to the appeal and were argued and fully considered, and pointed to no fraud or bias. Seeking review before reasons were rendered was premature and preposterous, so the narrow threshold was not met.

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Timing of a review application vis-à-vis delivery of reasons

Holding

A party cannot apply for review of a decision whose reasons are yet to be rendered; the applicant purported to read the court's mind prematurely

Reasoning

The judgment of 22nd June, 2022 was rendered under Rule 32(5) conveying the decision, with reasons to follow on 8th July, 2022. Before reasons were delivered, the applicant sought review on grounds (service, authenticity of a letter, incomplete record) that were argued in the appeal. The court held such an application premature and an abuse of the review process.

p. 2

Legal principles established

The Court of Appeal's residual jurisdiction to review its own decisions must be invoked with circumspection and in very rare cases, respecting the principle of finality
It is impermissible to apply for review of a decision before knowing the reasons informing the outcome

Court orders

1.The application dated 24th June, 2022 is dismissed with costs to the respondent

Authorities

Legislation

Court of Appeal RulesRule 32(5)

Cases cited (3)

Jemnyango Moses Kamali v Abdisalam Hassan Abdi and 2 others
(2022)
Threshold for review of the Court's own decisions - circumspection, rarity, fraud/bias/injustice, finality
Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
[2014] eKLR
Residual review jurisdiction invoked with circumspection; finality in litigation
Ushago Diani Investment Limited v Jabeen Manan Abdulwahab
[2019] eKLR
Residual review jurisdiction invoked with circumspection; finality in litigation

On appeal from: Court of Appeal at Kisumu; Election Petition (Civil Appeal) No. E002 of 2022
Jurisdiction invoked: Residual jurisdiction of the Court of Appeal to review its own decisions (Rule 32(5) Court of Appeal Rules (2010) invoked for the underlying judgment); no specific constitutional/statutory provision stated for this application

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Wiper Democratic Movement v Moturi; Geni (Interested Party)", Case Analysis (2022). Election Petition E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/624/eng@2022-07-08

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