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Court of AppealDismissedCivil Application 17 of 2015· [2022] KECA 945 (KLR)
Kamunya & another v Muiru & 3 others
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·~8 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal refused to review its own 2015 land judgment, ruling that a party's own negligence in compiling the appeal record is not grounds for review.
What this practically means
#Executive summary
#This ruling of the Court of Appeal at Nakuru (Okwengu, Mbogholi-Msagha and Laibuta, JJ.A) determines a notice of motion filed on 23rd June 2015 by John Nginyi Muchiri, the 1st respondent in Civil Appeal No. 23 of 2007, seeking review of the judgment delivered by a differently constituted bench of the Court (Githinji, Nambuye and Mwilu, JJ.A) on 26th March 2015. That judgment had allowed the appeal, set aside the High Court judgment and decree of 28th April 2005, dismissed the suit, and ordered the restoration of cancelled title deeds to the previous registered owners and cancellation of the applicant's registration as proprietor of four subdivisions. The applicant invoked sections 3(2) and 3A of the Appellate Jurisdiction Act and Rules 1(2), 35(2) and 42 of the Court of Appeal Rules, complaining that the record of appeal was inconsistent with the parties in the proceedings, that the further amended plaint was omitted from the record, and that the judgment erroneously benefited parties who did not prefer an appeal. He also sought a stay of the judgment. The 2nd, 3rd and 4th respondents opposed, contending the motion was incompetent and that the review threshold had not been met, relying on Jimna Mwangi Gichanga vs Attorney General. The Court applied its own decisions in Kamau James Gitutho vs Multiple ICD (K) Limited and Benjo Amalgamated vs Kenya Commercial Bank, restating that the Court, not being the final court, has only a cautious residual jurisdiction to review its decisions to correct errors of law occasioning real injustice that erodes public confidence in the administration of justice. The Court held the applicant's complaints about the record were self-inflicted, as he could have filed a supplementary record under Rule 92(1); that defendants in the High Court remain parties affected by the appeal even if they did not participate; and that no injustice or miscarriage of justice was demonstrated. The application was dismissed with costs.
Key legal issues
#01
Whether the applicant met the threshold for the Court's residual jurisdiction to review its own judgment
Holding
The applicant did not meet the threshold; the application for review was dismissed with costs.
Reasoning
The Court applied the Benjo Amalgamated threshold: residual jurisdiction exists only to correct errors of law occasioning real injustice or miscarriage of justice that erodes public confidence in the administration of justice. The applicant's complaints about the record of appeal and missing documents were self-inflicted negligence, since he could have filed a supplementary record under Rule 92(1). The claim that the judgment benefited non-appellants was not exceptional, as those parties were defendants in the High Court and remained parties affected by the appeal.
p. 4
Legal principles established
#- The Court of Appeal, not being the final court, has residual jurisdiction to review its own decisions only to correct errors of law that have occasioned real injustice or miscarriage of justice, eroding public confidence in the administration of justice, to be exercised cautiously.
- A party who had the opportunity under Rule 92(1) of the Court of Appeal Rules to file a supplementary record of appeal but did not do so cannot invoke the Court's residual jurisdiction to review its judgment on account of missing documents.
- Defendants in the High Court remain parties affected by an appeal even if they did not participate in the appeal; a decision benefiting them is not, without more, an exceptional or compelling reason for review.
Court orders
#- 1.The notice of motion dated 23rd June 2015 seeking review of the judgment of 26th March 2015 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Court of Appeal (Githinji, Nambuye & Mwilu, JJ.A)
- Civil Appeal No. 23 of 2007
- Jurisdiction invoked
- Sections 3(2) and 3A of the Appellate Jurisdiction Act, Cap 9; Rules 1(2), 35(2) and 42 of the Court of Appeal Rules (residual jurisdiction to review the Court's own decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamunya & another v Muiru & 3 others", Case Analysis (2022). Civil Application 17 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/945/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.