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Court of AppealDismissedNot stated in the judgment provided

CKO v JMO (Civil Appeal (Application) 560 of 2019) [2025] KECA 207 (KLR)

Court of Appeal
7 February 2025
2,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to review its 2023 matrimonial property judgment, confirming that review is reserved for fraud, bias, or nullity—not mere disagreement with the outcome.

What this practically means

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Executive summary

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This was a Notice of Motion dated 17th April, 2023 in which the applicant (the husband) asked the Court of Appeal to review and set aside its own judgment of 3rd February, 2023, which had dismissed his cross-appeal and varied the distribution of matrimonial property from the High Court's 70:30 ratio in his favour to 50:50. He alleged fundamental mistakes on the face of the record, false assumptions of fact, disregard of material evidence, and bias, invoking Articles 48 and 27 of the Constitution. The respondent opposed the motion as a thinly disguised appeal. The Court reiterated that its residual power to review its own concluded judgments exists but is exceptional, exercisable only with circumspection on grounds such as fraud, bias, nullity, or other injustice of similar genus causing a glaring miscarriage of justice, as set out in Benjoh Amalgamated, Standard Chartered v Manchester Outfitters, Niels Bruel, Cape Holdings v Synergy, and the Supreme Court's decision in Fredrick Otieno Outa v Jared Odoyo Okello. The Court found the judgment was not obtained by fraud or deceit, was not a nullity, and was not based on repealed law; any misdate of the suspension period was immaterial. It held that the applicant's invitation to reconsider the evidence was an appeal disguised as a review, noting that he had also filed a Notice of Appeal dated 15th February, 2023. The motion was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal has jurisdiction to review its own judgment, and if so, in what circumstances that exceptional jurisdiction may be exercised
  2. 2.Whether the judgment dated 3rd February, 2023 was obtained by fraud, was a nullity, was rendered on a repealed law or through deceit, or was otherwise affected by bias or material misapprehension of evidence
  3. 3.Whether the application for review is in substance an appeal disguised as a review

Key legal issues

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01

Scope of the Court of Appeal's residual power to review its own judgments

Holding

The jurisdiction exists but is exceptional and limited to cases of fraud, bias, nullity, or other injustice, exercised with circumspection, following Benjoh Amalgamated and the Supreme Court's guidance in Fredrick Otieno Outa v Jared Odoyo Okello.

Reasoning

The Court traced the jurisprudence from Benjoh Amalgamated, Standard Chartered Financial Services v Manchester Outfitters, Niels Bruel v Moses Wachira and Cape Holdings v Synergy Industrial Credit, all of which confine review of concluded Court of Appeal judgments to exceptional grounds. It adopted the Supreme Court's list in Outa: judgments obtained by fraud or deceit, nullities, judgments entered on mistaken consent, or judgments based on repealed or concealed law. Alleged errors of fact or law fall within appeal, not review.

p. 4
02

Whether the applicant established fraud, bias or material misapprehension of evidence

Holding

No. The judgment was not obtained by fraud, was not a nullity, and no bias or material misapprehension of the evidence was demonstrated; the applicant's real grievance was dissatisfaction with the Court's evaluation of his contribution.

Reasoning

The Court found that the applicant's complaints - the date of suspension, his income during suspension, his pig farming, severance pay, damages for wrongful termination, and sole acquisition of certain properties - all went to the evaluation of evidence already considered in the judgment. A possible error in the year of suspension (1997 rather than 1999) was immaterial and, if anything, understated his suspension period. The 50:50 distribution was reasoned and no bias was shown.

p. 4
03

Whether the application is an appeal disguised as a review

Holding

Yes. The applicant had also filed a Notice of Appeal dated 15th February, 2023 against the judgment, and his request to 'reconsider the evidence' amounted to a second bite of the cherry.

Reasoning

The Court noted the applicant's dissatisfaction with the 50:50 outcome and his filing of a Notice of Appeal to the Supreme Court. Inviting the same Court to revisit its evaluation of the evidence under the guise of review would create an illegitimate tier of appeals against its own decisions, contrary to the jurisprudence in Cape Holdings v Synergy.

p. 5

Legal principles established

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  • The Court of Appeal's residual jurisdiction to review its own concluded judgments is exceptional, to be exercised sparingly and with circumspection, and only on grounds such as fraud, bias, nullity, or other injustice of a similar genus - not on allegations of misapprehension of evidence or misapplication of the law.
  • An application that invites the Court to reconsider its evaluation of the evidence is an appeal disguised as a review and will be rejected.

Court orders

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  1. 1.The Notice of Motion dated 17th April, 2023 seeking review of the judgment dated 3rd February, 2023 is dismissed
  2. 2.Costs of the application are awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
Court of Appeal (own judgment under review; underlying appeal from the High Court)
Not stated
Jurisdiction invoked
The Court of Appeal's residual/inherent jurisdiction to review its own decision in exceptional circumstances, as recognised in Benjoh Amalgamated Limited v Kenya Commercial Bank Limited

Relief refused

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Review and setting aside of the Court of Appeal judgment dated 3rd February, 2023 and a decision de novo

The Court found no exceptional circumstances: no fraud, nullity, deceit or repealed law; the complaints were about the Court's analysis of the evidence, which are grounds of appeal, not review

p. 5

Costs

The motion dated 17th April, 2023 is dismissed with costs to the respondent

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.

Starting with the first prayer to re-open the appeal and review the judgment of this Court, it is axiomatic that this Court has jurisdiction to do so. But that jurisdiction is exceptional and has to be exercised sparingly and with circumspection to thwart disafiected parties who merely seek a second bite of the cherry or who invite the Court to sit on appeal from its own judgment.
p. 3Exceptional and sparing exercise of the Court of Appeal's review jurisdiction
In our view, the judgment of this Court was not obtained by fraud, neither was it a nullity. It was also not rendered on the basis of repealed law or on account of any deceit.
p. 4None of the exceptional grounds for review established
We think we have said enough to demonstrate that we are not persuaded that there are exceptional circumstances to warrant a review of this Court's judgment dated 3rd February, 2023. The motion dated 17th April, 2023 is hereby dismissed with costs to the respondent.
p. 5Final orders - dismissal of the review motion with costs

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, "CKO v JMO (Civil Appeal (Application) 560 of 2019) [2025] KECA 207 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/207/eng@2025-02-07

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