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Court of AppealDismissedNot stated in judgment (application dated 9th December 2022)· [2023] KECA 1201 (KLR)

Mayieka & 22 others v Judicial Service Commission (Civil Appeal (Application) 187 of 2019) [2023] KECA 1201 (KLR)

Court of Appeal of Kenya
6 October 2023
2,276 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 confirmed it can review its own decisions, but refused to overturn a stay order, blaming the parties for hiding their settlement from the court.

What this practically means

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Executive summary

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This was an application dated 9th December 2022 seeking review of the Court of Appeal's ruling of 3rd November 2022, which had stayed execution of a judgment of the Employment and Labour Relations Court delivered on 17th January 2019 in a dispute between petitioners and the Judicial Service Commission over amounts due to the 1st to 21st Petitioners. The stay had been granted because the appeal was arguable and would be rendered nugatory without it, the court also noting that the 'Shop Floor' issue had to be determined before the decretal amount could be fixed. The review applicants showed that, unbeknown to the court, the parties had since negotiated: the JSC computed Kshs.13,671,000.00 as due, the petitioners accepted the computation, but the JSC then declined to pay, citing the stay order. The court framed two issues: whether it has jurisdiction to review its own ruling, and whether a case for review was made out. Relying on Section 3(2) of the Appellate Jurisdiction Act, Section 80 of the Civil Procedure Act, and Benjoh Amalgamated, Taylor v Lawrence and Mukuru Munge, the court held it has a residual, sparingly exercised jurisdiction to review its own decisions in exceptional circumstances. On the merits, however, it found the stay order rightly made on the facts then prevailing and blamed the parties for failing to disclose their negotiations. The review application was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the Court of Appeal to review its own decision

Holding

The Court has residual jurisdiction to review its own rulings, exercising the powers vested in the High Court

Reasoning

Section 3(2) of the Appellate Jurisdiction Act vests in the Court of Appeal, for purposes incidental to the hearing and determination of appeals, the power, authority and jurisdiction of the High Court. Section 80 of the Civil Procedure Act permits an aggrieved person to seek review of an order from the court which made it. Benjoh Amalgamated confirms this residual jurisdiction, to be exercised cautiously in cases of error occasioning real injustice.

p. 4
02

Whether the applicants made out a case for review on the ground of new facts

Holding

No case for review was made out; the stay order was correct when made and the parties' undisclosed settlement could not justify disturbing it

Reasoning

The JSC's subsequent change of position and offer to pay the petitioners, and the petitioners' acceptance, were facts the parties failed to place before the court when the stay application was determined. Had the court been informed, it would not have determined the application. The court cannot vacate a correctly made order merely because of the parties' own failure of disclosure.

p. 6
03

The finality principle versus the justice principle in review applications

Holding

The finality principle should be upheld as much as possible to bring litigation to an end; review is exceptional

Reasoning

Finality of litigation serves public interest in conclusiveness, while the justice principle requires doing justice to parties to sustain public confidence in the judiciary. Benjoh Amalgamated, Taylor v Lawrence and Mukuru Munge establish that reopening decided matters is a circumscribed, exceptional power exercised cautiously.

p. 5

Legal principles established

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  • The Court of Appeal has residual jurisdiction to review its own decisions, derived from Section 3(2) of the Appellate Jurisdiction Act and Section 80 of the Civil Procedure Act, but that jurisdiction is exercised sparingly and only in exceptional circumstances to avoid real injustice
  • Review jurisdiction must be balanced against the finality principle; litigation should be brought to an end and review granted only where injustice demands it

Court orders

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  1. 1.The application for review of the ruling of 3rd November 2022 is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3(2)
  • Civil Procedure ActSection 80

Cases cited (3)

  • Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited
    [2014] eKLR
  • Taylor & Another v Lawrence & Another
    [2002] 2 All ER 253
  • Mukuru Munge v Florence Shingi Mwawana & 2 Others
    Civil Appeal No. 191 of 2011
On appeal from
Employment and Labour Relations Court
null
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act read with Section 80 of the Civil Procedure Act (residual jurisdiction to review own decisions)

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, "Mayieka & 22 others v Judicial Service Commission (Civil Appeal (Application) 187 of 2019) [2023] KECA 1201 (KLR)", Case Analysis (2023). Not stated in judgment (application dated 9th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1201/eng@2023-10-06

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