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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2025] KECA 2112 (KLR)

Paul Kitema v Kenya Power & Lighting Co. Ltd

Court of Appeal
5 December 2025
1,661 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 will only review its own judgments in exceptional cases — losing a case is not grounds for a second attempt.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (M'inoti, ole Kantai and Laibuta, JJ.A) dismissing a review application by Paul Kitema against the court's own judgment of 10th June 2022, which had dismissed his appeal against an ELRC award of approximately Kshs. 1.72 million for unfair termination by Kenya Power and Lighting Co. Ltd. The applicant, a clerk terminated in 2015 for failing to report back from annual leave, obtained a judgment from Makau J finding the dismissal substantively and procedurally unfair and awarding notice pay, maximum compensation and unpaid salary. His appeal to the Court of Appeal failed, and he sought review on grounds of alleged bias and failure to consider his evidence. The court reaffirmed that, per Benjoh Amalgamated, it possesses residual jurisdiction to reopen its own decisions in cases of fraud, bias or other injustice, but per Mukuru Munge and Manchester Outfitters that jurisdiction is circumscribed, exceptional, and must yield to the principle of finality in litigation except where obviating injustice outweighs it. Applying the objective test for bias from Kalpana H. Rawal, the court found no reasonable apprehension of partiality; the applicant's complaint amounted only to dissatisfaction with the outcome. It further held that a first appellate court need not regurgitate all evidence, and that asserting a judgment was wrong in conclusion is not a review ground but a disguised second appeal. The application was dismissed with costs to the respondent. The decision binds lower courts on the exceptional, sparingly exercisable nature of the Court of Appeal's review jurisdiction.

Key legal issues

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01

Scope of the Court of Appeal's review jurisdiction over its own judgments

Holding

The jurisdiction exists but is residual and exceptional, to be exercised sparingly and only where the need to obviate injustice outweighs the finality principle; it cannot be used as a second appeal against the court's own decision

Reasoning

The court adopted Benjoh Amalgamated, which recognised residual jurisdiction in cases of fraud, bias or other injustice, balanced against the finality principle and public interest in conclusive litigation. Mukuru Munge and Manchester Outfitters confirm the power is circumscribed and exercisable only in exceptional cases. A losing party's mere disagreement with the outcome does not meet that threshold, as that would amount to asking the court to sit on appeal against itself.

p. 3
02

Whether the applicant proved bias

Holding

The allegation of bias failed; it was supported by no evidence beyond the fact that the court decided against the applicant

Reasoning

The court applied the objective test from Kalpana H. Rawal v Judicial Service Commission, requiring a reasonable apprehension of partiality in the mind of a reasonable, fair-minded and informed member of the public. The applicant offered no concrete evidence or cogent reasoning; his grievance amounted only to dissatisfaction with the adverse outcome, which falls far short of the threshold.

p. 3
03

Whether the court failed to consider the applicant's evidence and grounds of appeal

Holding

The court was satisfied it had carefully considered the evidence; failure to enumerate all evidence is not a failure to consider it, and a claim that the judgment was wrong is not a review ground

Reasoning

The court held that a first appellate court need not regurgitate all the evidence to demonstrate consideration. The applicant's real complaint was that the judgment's conclusions were wrong, which is an appeal point, not a basis for invoking the exceptional review jurisdiction.

p. 4

Legal principles established

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  • The Court of Appeal's jurisdiction to review its own decisions is exceptional and must be exercised sparingly and with circumspection; mere dissatisfaction with the correctness of the judgment is not a ground for review
  • The test for bias is objective: there must be a reasonable apprehension in the mind of a reasonable, fair-minded and informed member of the public that the judges did not apply their minds impartially
  • A first appellate court is not obliged to regurgitate all the evidence on record; a judgment merely being wrong in its conclusion is not a basis for review

Court orders

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  1. 1.The application dated 19th July 2022 is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
Court of Appeal
Not stated
Jurisdiction invoked
Residual/inherent jurisdiction of the Court of Appeal to review its own judgments, as recognised in Benjoh Amalgamated Ltd & another v Kenya Commercial Bank and Mukuru Munge v Florence Shingi Mwawana

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Paul Kitema v Kenya Power & Lighting Co. Ltd", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2112/eng@2025-12-05

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