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Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication 33 of 2020

Kenya Bureau of Standards v Geo Chem Middle East

Supreme Court of Kenya
17 March 2021
2,525 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Supreme Court cannot review its own decisions except in rare cases like fraud.

What this practically means

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The Supreme Court of Kenya refused to reopen a final judgment because the applicant was simply trying to re-argue the case. The Court explained that it can only review its own decisions in very limited situations, such as when the judgment was obtained through fraud or the court was misled. This strict rule ensures that court rulings remain final and parties cannot keep litigating the same issues.

Executive summary

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This was an application by Luise Rasanga seeking review and stay of the Supreme Court's Judgment and Orders of 18th December 2020 in SC Petition No. 47 of 2019. In that judgment, the Supreme Court had overturned the Court of Appeal's decision and affirmed the High Court's adoption of an arbitral award directing payment of USD 15,401,504.70. The applicant argued that the Court had committed a jurisdictional error by finding it lacked jurisdiction yet granting orders, had retrospectively applied decisions in Nyutu and Synergy cases, violated fair hearing rights, and misinterpreted the Court of Appeal's determination. The respondent opposed the application, contending that the review jurisdiction was limited to the slip rule under Section 21(4) of the Supreme Court Act, and that the application was a disguised appeal. The Supreme Court, applying its precedent in Fredrick Otieno Outa, held that review is only available in exceptional circumstances: fraud, nullity, mistaken belief of consent, or reliance on a repealed or concealed law. The Court found that the applicant failed to demonstrate any of these grounds and that the application was merely an attempt to relitigate matters already determined with finality. Consequently, the Court dismissed the application 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 application meets the threshold for grant of review orders
  2. 2.If the answer to (i) above is in the affirmative, what remedies are available

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review its own judgment beyond the slip rule under Section 21(4) of the Supreme Court Act.

Holding

The Supreme Court's review jurisdiction is limited to correction of clerical errors under Section 21(4) of the Supreme Court Act, but the Court may, in exercise of its inherent powers, review its judgments in exceptional circumstances as set out in Fredrick Otieno Outa.

Reasoning

The Court reaffirmed the position in Fredrick Otieno Outa that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions or to review them except under Section 21(4). However, in exceptional circumstances—such as fraud, nullity, mistaken belief of consent, or reliance on a repealed or concealed law—the Court may review its own decisions. The applicant's grounds did not fall within any of these exceptional circumstances, and the application was merely a disguised appeal seeking to reopen matters already determined with finality.

02

Whether the application for review met the threshold of exceptional circumstances as set out in Fredrick Otieno Outa.

Holding

The application did not meet the threshold; it was a disguised appeal seeking to relitigate matters already determined.

Reasoning

The Court examined the applicant's grounds—including alleged jurisdictional error, retrospective application of decisions, violation of fair hearing, and misinterpretation of the Court of Appeal's determination—and found that none of these fell within the four exceptional circumstances for review. The Court emphasized that review is not an opportunity for a party to appeal or reargue its case. Since the applicant failed to demonstrate how the judgment could be impugned on any of the four grounds, the application was dismissed.

Legal principles established

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  • The Supreme Court cannot sit on appeal over its own decisions or review them except under the slip rule or in exceptional circumstances.
  • Exceptional circumstances for review include fraud, nullity, mistaken belief of consent, or reliance on a repealed or concealed law.
  • A review application is not a chance to appeal or relitigate a case already decided.
  • The applicant must clearly show that the judgment falls within one of the exceptional grounds.
  • Failure to meet the strict threshold results in dismissal with costs.

Court orders

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  1. 1.The Notice of Motion dated 23rd December, 2020 and filed on 28th December 2020, is hereby dismissed
  2. 2.The applicant shall bear the costs of this application

The bench

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

Philomena Mbete Mwilu
M. MwiluCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
SC Petition No. 47 of 2019
Jurisdiction invoked
Sections 3, and 21 (2) & (4) of the Supreme Court Act and Rules 3 (1) & (5), 28 (5) and 32 of the Supreme Court Rules, 2020

Relief refused

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Review of the Supreme Court's Judgment and Orders of 18th December 2020 in SC Petition No. 47 of 2019

The application failed to meet the threshold for review as set out in Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others

Stay of execution of the Judgment and Orders of 18th December 2020

The application for review was dismissed, and no separate basis for stay was established

Costs

The applicant shall bear the costs of this application.

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.

the Supreme Court has neither jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner contemplated by Section 21(4) of the Supreme Court Act.
p. 5 Review jurisdiction of the Supreme Court
It is clear to us that the application before us is a disguised appeal which seeks to reopen Matters already determined with finality by this Court.
p. 6 Nature of review application
The Notice of Motion dated 23rd December, 2020 and filed on 28th December 2020, is hereby dismissed;
p. 6 Final orders
The applicant shall bear the costs of this application.
p. 6 Costs order

Key timeline

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18 December 2020
Supreme Court issued judgment in SC Petition No. 47 of 2019 affirming an arbitral award of USD 15,401,504.70.
23 December 2020
Applicant filed Notice of Motion seeking review and stay of that judgment.
28 December 2020
Notice of Motion was filed in court.
2024 (presumed)
Supreme Court dismissed the application, ruling it was a disguised appeal and did not meet the exceptional review criteria.

Practical implications

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For lawyers

Strict limits on Supreme Court review

When advising clients on challenging a final Supreme Court decision, stress that review is only available in four narrow exceptional circumstances. Do not file a review merely to reargue the case—it will be dismissed as an abuse of process. Focus on evidence of fraud, nullity, or a concealed statutory provision to meet the threshold.

For businesses

Finality of arbitral awards upheld

This ruling confirms that once the Supreme Court upholds an arbitral award, the decision is final and very hard to challenge. Businesses should invest in strong arbitration cases from the start, because the review window is extremely narrow. Expect to pay costs if you attempt a frivolous review.

For individuals

Don't rely on review to reopen a case

If you lose a case in the Supreme Court, you cannot simply ask for a review because you disagree with the outcome. The Court will only reconsider if the original judgment was obtained by fraud, the court lacked jurisdiction, or it relied on a repealed law. Otherwise, the decision stands.

Frequently asked questions

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Can the Supreme Court of Kenya review its own judgments?+

Yes, but only in very limited situations: to correct clerical errors under the slip rule, or in exceptional circumstances like fraud, nullity, or if the court was misled by a repealed law. The Court will not review just because a party disagrees with the outcome.

What are exceptional circumstances for Supreme Court review in Kenya?+

The Supreme Court outlined four grounds: (1) judgment obtained by fraud or deceit, (2) the court was not competent to hear the case, (3) the court was misled into giving judgment under a mistaken belief of consent, or (4) the judgment relied on a repealed law or a deliberately concealed statutory provision.

How do I apply for review of a Supreme Court decision in Kenya?+

You must file a notice of motion within a reasonable time, clearly stating which exceptional circumstance applies. The application must not be a disguised appeal. The Court will dismiss it if you simply reargue the case. Costs are usually awarded against unsuccessful applicants.

What is the slip rule in the Kenya Supreme Court?+

The slip rule, under Section 21(4) of the Supreme Court Act, allows the Court to correct clerical errors or accidental omissions in its judgments. It does not permit a full review of the merits. This rule is the only general review power, besides the exceptional circumstances listed in case law.

Later judgments citing this (10)

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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, "Kenya Bureau of Standards v Geo Chem Middle East", Case Analysis (2021). Application 33 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/60/eng@2021-03-17

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