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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedApplication dated December 21, 2022 in pending appeal arising from MSA High Court Admiralty Claim No E003 of 2021· [2023] KECA 983 (KLR)

Starryway Trading & Shipping Co Ltd v Et Timbers Pte Limited & 1 other

Court of Appeal
28 July 2023
3,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it can review its own rulings in exceptional cases, and lifted a stay because the underlying award had been paid.

What this practically means

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Executive summary

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This Court of Appeal (Mombasa), in a unanimous judgment delivered on July 28, 2023, allowed an application by ET Timbers Pte Limited seeking to reopen and review the Court's own ruling of October 21, 2022, in which a stay of proceedings in Mombasa High Court Admiralty Claim No E003 of 2021 had been granted pending appeal by Starryway Trading & Shipping Company Ltd. The Court framed two questions: whether it has residual jurisdiction to review its own rulings, and whether the applicant met the threshold for that jurisdiction. On the first question, relying on Standard Chartered Financial Services v Manchester Outfitters, Kamau James Gituthu v Multiple ICD, Benjoh Amalgamated v Kenya Commercial Bank, and the Supreme Court's affirmation in Menginya Salim Murgani v Kenya Revenue Authority, the Court confirmed that, not being the final court, it has residual jurisdiction to review its own rulings under the 2010 Constitution. On the second, the Court adopted the three-part threshold from Kamau James Gituthu: injustice or miscarriage of justice, erosion of public confidence in the administration of justice, and no appeal lying against the decision. It found the threshold met because the Partial Final Award which formed the basis of the stay had been paid in full (USD 978,000), while the outcome and timing of the pending London arbitration were unknown, so there was nothing to justify the continued stay. The Court allowed the application, lifted the stay of October 21, 2022, and awarded costs of the application to the 1st respondent.

Key legal issues

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01

Whether the Court of Appeal has residual jurisdiction to review its own rulings after the 2010 Constitution

Holding

The Court confirmed it has residual jurisdiction to review its own ruling, judgment or order, as it is not the final court in the land

Reasoning

Relying on its prior decisions in Benjoh Amalgamated, Standard Chartered and Kamau James Gituthu, and on the Supreme Court's affirmation in Menginya Salim Murgani, the Court held that although the Supreme Court is the highest court, the Court of Appeal remains the court of last resort in most disputes and may, post-2010 Constitution, review its own decisions where the interests of justice demand, exercising that jurisdiction cautiously and only in exceptional situations.

p. 5
02

Whether the threshold for review was met so as to lift the stay granted on October 21, 2022

Holding

The threshold was met because the Partial Final Award which was the basis of the stay had been paid in full, and the outcome of the pending London arbitration was unknown

Reasoning

The basis for the stay was the pending awards. Since the 1st respondent had paid USD 978,000 in satisfaction of the Partial Final Award, and the outcome and timing of the remaining London arbitral proceedings were unknown, there was nothing to justify the continued stay of the High Court proceedings; the stay was accordingly lifted.

p. 7

Legal principles established

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  • The Court of Appeal has residual jurisdiction to review its own rulings and judgments under the 2010 Constitution
  • That residual jurisdiction is exercised cautiously, only in exceptional cases, and only upon a demonstrated three-part threshold

Court orders

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  1. 1.The 1st respondent's application dated December 21, 2022 be and is hereby allowed in terms of prayer (2)
  2. 2.The order of stay of proceedings issued by this Court on October 21, 2022 be and is hereby lifted
  3. 3.The costs of the application to go to the 1st respondent
Jurisdiction invoked
Residual jurisdiction of the Court of Appeal to review its own rulings under the 2010 constitutional dispensation

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, "Starryway Trading & Shipping Co Ltd v Et Timbers Pte Limited & 1 other", Case Analysis (2023). Application dated December 21, 2022 in pending appeal arising from MSA High Court Admiralty Claim No E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/983/eng@2023-07-28

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