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Court of AppealDismissedCivil Appeal Nos. 107, 137 and 174 of 2010 (Application dated 16th February 2018)

Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another (Civil Appeal (Application) 40 of 2018) [2024] KECA 593 (KLR)

Court of Appeal
24 May 2024
ASAsike-MakhandiaKMK. M'inotiSKS. Ole KantaiFTF. TuiyottJMJ. Mativo
6,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to reopen Benjoh Amalgamated's long-running dispute with KCB, confirming that Supreme Court decisions bind all Kenyan courts and review is only for exceptional cases.

What this practically means

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Executive summary

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This is a ruling of a five-judge bench of the Court of Appeal at Nairobi, delivered on 24th May 2024, dismissing Benjoh Amalgamated Limited's application dated 16th February 2018 seeking to re-open, review and set aside the Court's judgment of 15th December 2017 (in Civil Appeals Nos. 107, 137 and 174 of 2010) which had dismissed its appeal against Kenya Commercial Bank and Bidii Kenya Limited. The underlying dispute over a 1989 USAID-funded KCB loan, a consent order recorded before Githinji, J. on 4th May 1992, and the subsequent statutory power of sale over L.R. No. 10075 had generated at least fourteen suits over 25 years. The Court framed two issues: whether it could entertain the application in light of the Supreme Court's decision in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd [2016] eKLR, which declared the consent settled with finality since 10th March 1998; and whether the application met the exceptional threshold for review. On the first issue, the Court held that under Article 163(7) it is bound by the Supreme Court and refused to circumvent its determination, so the application collapsed on that ground alone. On the second, the Court acknowledged its residual jurisdiction to re-open decided cases only in exceptional circumstances (fraud, nullity, absence of jurisdiction, fundamental irregularity) but found the alleged new evidence - an affidavit by advocate G.K. Meenye disowning the consent and evidence he lacked a practising certificate - lacked merit, noting the applicant's decades of unexplained delay, its implausible claim not to know its own lawyer, and its approbating and reprobating position. The prayer for certification and leave to appeal was abandoned. The application was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court can entertain an application to review, vary or set aside the consent recorded on 4th May 1992 in light of the Supreme Court determination in Kenya Commercial Bank Limited vs Muiri Coffee Estate Limited & Another [2016] eKLR
  2. 2.Whether the applicant has satisfied the thresholds laid down by decided cases to merit the review of this Court's judgment of 15th December 2017

Key legal issues

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01

Whether the Court can re-open the 1992 consent order contrary to the Supreme Court's determination

Holding

The application collapses on this ground alone; the Court cannot circumvent the Supreme Court's decision that the consent was settled with finality on 10th March 1998

Reasoning

The Supreme Court in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd held it had no jurisdiction to reopen the consent determined by the final court of the time, and pronounced that rights had crystallized and the justice system will not tamper with them. Under Article 163(7), this Court is bound by those findings, and inviting it to reopen the same consent is an attempt to circumvent the Supreme Court's decision.

p. 9
02

Whether the alleged new evidence (Meenye's affidavit and lack of practising certificate) merits review

Holding

No; the review jurisdiction is exceptional and the applicant's assertions were found to be dishonest and internally contradictory

Reasoning

The consent had existed for 32 years and been the subject of numerous decisions. The applicant never alluded to these issues in its many prior suits and applications. The Court found it implausible that Benjoh took decades to discover it never instructed its lawyer, and that it was approbating and reprobating by denying the consent while simultaneously challenging how it was entered into.

p. 11
03

The scope of the Court of Appeal's residual jurisdiction to re-open its own decisions

Holding

The Court has residual jurisdiction to re-open a decided case only in appropriate and exceptional circumstances

Reasoning

Drawing on English, Australian and Indian authorities and its own precedents, the Court affirmed that residual jurisdiction exists to avoid real injustice but is tied to a discretion, exercised with caution, in cases where a judgment was obtained by fraud, is a nullity, was given without jurisdiction, or is affected by fundamental irregularity. It is not a back door for unsuccessful litigants to re-argue their cases.

p. 11

Legal principles established

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  • Under Article 163(7) of the Constitution, the Court of Appeal is bound by the decisions of the Supreme Court and cannot re-open a matter the Supreme Court has determined with finality
  • A party is not entitled to seek review of a Court of Appeal judgment merely for a rehearing and a fresh decision; departure from finality is justified only in exceptional, substantially compelling circumstances
  • To qualify as new evidence for review, the applicant must show the evidence was not adduced in the proceedings and could not have been procured with reasonable diligence, and that it is reliable, substantial and of high probative value

Court orders

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  1. 1.The application dated 16th February 2018 is dismissed
  2. 2.Costs of the application are awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority
KM
majority
SK
majority
FT
majority
JM
majority
On appeal from
Court of Appeal (prior full-bench judgment under review)
Civil Appeal Nos. 107, 137 and 174 of 2010
Jurisdiction invoked
Articles 25, 159, 163(4)(b), 164 and 259 of the Constitution; Rule 24(1) of the Supreme Court Rules, 2012; Sections 3, 3A & 3B of the Appellate Jurisdiction Act; Rules 1(2) and 31 of the Court of Appeal Rules (residual jurisdiction to review its own decisions)

Relief refused

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Re-opening, reviewing and setting aside this Court's judgment of 15th December 2017 and allowing Benjoh's dismissed appeal

The validity of the consent order was settled with finality by the Supreme Court, and the applicant failed to meet the exceptional threshold for review; the alleged new evidence was not credible and the applicant was approbating and reprobating

p. 12

Certification under Article 163(4) of the Constitution and leave to appeal to the Supreme Court (prayer two)

Abandoned by the applicant's counsel during the hearing

p. 6

Costs

The application dated 16th February 2018 is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In summation, the application dated 16th February, 2018, lacks merit and it is hereby dismissed with costs to the respondents.
p. 12Final orders / disposition
The applicant is naively or mischievously asking this Court to circumvent the Supreme Court’s decision. We decline the invitation to do so. On this ground alone, the application collapses.
p. 9Binding effect of Supreme Court decisions under Article 163(7)
To qualify as new evidence, an applicant must demonstrate that the evidence was not adduced in the proceedings in question; and it could not have been procured despite exercise of reasonable diligence.
p. 11Threshold for new evidence on review
The purpose of the jurisdiction is not to provide a back-door method by which unsuccessful litigants can seek to re- argue their cases.
p. 10Limits of residual review jurisdiction (adopting Autodesk Inc v Dyason principles)
Justice demands that a successful party in litigation be allowed to enjoy the fruits of its litigation.
p. 4Finality in litigation (quoting the 15th December 2017 judgment)

Issues in the judgment

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minor

The judgment contains two sets of inconsistent numbering for the paragraphs setting out the review grounds and findings (paragraphs restart mid-stream), and a recurring typographical error rendering the HCCC number as 'HCC No. 1219 of 192' instead of 1992

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another (Civil Appeal (Application) 40 of 2018) [2024] KECA 593 (KLR)", Case Analysis (2024). Civil Appeal Nos. 107, 137 and 174 of 2010 (Application dated 16th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/593/eng@2024-05-24

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