Paul Kitema v Kenya Power & Lighting Co. Ltd
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's review jurisdiction over its own judgments
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
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.
Whether the applicant proved bias
The allegation of bias failed; it was supported by no evidence beyond the fact that the court decided against the applicant
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.
Whether the court failed to consider the applicant's evidence and grounds of appeal
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
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.
Legal principles established
#- 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
#- 1.The application dated 19th July 2022 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Charles Khakali Olenja v Joyce Muhenge Olenja[2026] KECA 199 (KLR)6 Feb 2026
Cite this brief
#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.