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Supreme CourtDismissedPetition 3 of 2014

Robert Tom Martins Kibisu v Republic

Supreme Court of Kenya
28 February 2018
Mohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. NjokiIsaac LenaolaI. Lenaola
8,578 words in judgment
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·~34 min to read original · ~4 min brief

The bottom line

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The Supreme Court cannot review its own rulings except for clear clerical errors or in extreme cases like fraud.

What this practically means

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The Supreme Court of Kenya says it has no power to review its own decisions just because someone disagrees with them. You can only ask for a correction if there is a clear typo, accidental mistake, or in very rare cases like fraud, a fake judgment, or a law that has been repealed. This keeps court rulings final and prevents endless appeals. The Court also said a judge is not biased just because they have their own case in another court.

Executive summary

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This judgment concerns an application by Tom Martins Kibisu seeking review of the Supreme Court's earlier judgment of 25th November 2014, which had dismissed his appeal against his court martial conviction. The application was brought under Article 163(3)(b)(ii) of the Constitution and section 21(4) of the Supreme Court Act, seeking correction of alleged errors apparent on the face of the record. The applicant raised several grounds including that the judgment was based on a repealed law, that the Court failed to cite its earlier decision on legitimate expectation, and that the presiding judge, Justice Tunoi, was biased because he was simultaneously litigating his own retirement age case. The respondent filed a preliminary objection arguing the application was incompetent and an abuse of process. The Supreme Court, applying its earlier decision in Fredrick Otieno Outa v. Jared Odoyo Okello, held that section 21(4) only confers the Slip Rule jurisdiction to correct clerical errors or accidental slips, and does not allow the Court to sit on appeal over its own judgments. The Court recognized that it may, in exceptional circumstances (fraud, nullity, mistaken consent, or judgment based on a repealed law), review its decisions in exercise of its inherent powers. The Court found that the applicant failed to establish any of these exceptional circumstances. On the bias allegation, the Court applied the objective test and held that the mere fact that a judge is a litigant in a different case does not establish bias, and the applicant's allegations were based on conjecture. The Court dismissed the application with no order as to costs, emphasizing that litigation must come to an end.

Questions the Court framed

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

  1. 1.Whether the applicant has made a case to warrant this Court reviewing its decision rendered on 25th November, 2014
  2. 2.If (i) is in the affirmative, whether the application should be granted

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review its own judgment under section 21(4) of the Supreme Court Act

Holding

Section 21(4) only confers the 'Slip Rule' jurisdiction to correct clerical errors, accidental slips, or omissions, and does not confer power to sit on appeal over or extensively review its own judgments.

Reasoning

The Court adopted the reasoning from Fredrick Otieno Outa v. Jared Odoyo Okello, holding that section 21(4) embodies the Slip Rule, which permits correction of errors so obvious that their correction cannot generate controversy or alter the substance of the judgment. The Court found no express constitutional or statutory basis for a general review power, and held that Rule 20(4) of the Supreme Court Rules cannot confer jurisdiction beyond the Slip Rule as it is subsidiary legislation. However, the Court recognized inherent power to review in exceptional circumstances: fraud, nullity, mistaken consent, or judgment based on a repealed law or deliberately concealed statutory provision.

p. 13
02

Whether the applicant established exceptional circumstances to warrant review of the Supreme Court's judgment of 25th November 2014

Holding

The applicant failed to establish any of the exceptional circumstances (fraud, nullity, mistaken consent, or judgment based on repealed law) required for review.

Reasoning

The Court examined each of the four exceptional circumstances from the Outa case. The applicant did not allege fraud, deceit, or that the judgment was a nullity or a product of consent. Regarding the repealed law ground, the Court noted that while the Armed Forces Act was repealed, it was the applicable law when the cause of action arose and was fully in force at the time of determination. The application was essentially a disguised appeal seeking a second bite at the cherry, which the Court declined to entertain.

p. 15
03

Whether the presiding judge, Justice Tunoi, was biased and whether this constitutes a ground for review

Holding

The allegation of bias was not proved; the mere fact that Justice Tunoi was a litigant in a different case concerning retirement age does not establish bias, and this ground does not fall within the exceptional circumstances for review.

Reasoning

The Court applied the objective test for bias: whether a reasonable, objective, and informed person would apprehend bias. The applicant's allegations were based on conjecture and personal apprehension, not cogent evidence. The Court held that a judge does not lose his or her rights under the Bill of Rights by virtue of office, and pursuing rights in a different court does not create bias. The Court also noted that the applicant did not raise the bias issue during the hearing of the main petition, only discovering it later through internet browsing.

p. 19

Legal principles established

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  • The Supreme Court cannot sit on appeal over its own decisions or review them for mistakes in reasoning.
  • The 'Slip Rule' only allows correcting obvious typing errors or accidental omissions that do not change the judgment.
  • A judge’s personal case in a different court does not, by itself, prove bias in a case they are hearing.
  • Review is only allowed in four rare cases: fraud, nullity, mistaken consent, or a judgment based on a repealed law.
  • An error must be obvious on the judgment's face; you cannot use new evidence to argue there is a mistake.

Court orders

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  1. 1.The application dated 4th December, 2014 is hereby dismissed
  2. 2.We make no orders as to costs

The bench

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

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NjokiSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Petition No. 3 of 2014
Jurisdiction invoked
Article 163(3)(b)(ii) of the Constitution and section 21(4) of the Supreme Court Act

Relief refused

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Correction of errors apparent on the judgment delivered on 25th November, 2014

The application failed to meet any of the exceptional circumstances under which review may lie as elaborated in the Outa case

p. 15

Costs

We make no orders as to costs

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 application dated 4th December, 2014 is hereby dismissed but we make no orders as to costs.
p. 20 Final orders dismissing the review application
as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.
p. 14 Limited jurisdiction of the Supreme Court to review its own decisions
Section 21(4) of the Supreme Court Act, does not confer upon this Court, jurisdiction, or powers, to sit on appeal over its own Judgments. Neither, does it confer upon the Court, powers to review any of its Judgments once delivered, save to correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the Judgment or Order so as to give effect to its meaning or intention.
p. 13 Scope of the Slip Rule under section 21(4)
an applicant is thus duty bound to specifically point at the particular page/paragraph and/or portion of the judgment where he opines that the alleged error is situated. Suffice it to say, an error cannot be apparent on the face of the judgment when that error requires evidence to be adduced so as to enable the Court to discern it.
p. 15 Requirements for an application for correction of errors

Key timeline

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2014-12-04
Tom Martins Kibisu files application for review of Supreme Court judgment.
2014-11-25
Supreme Court delivered original judgment dismissing Kibisu's appeal.
2018
Supreme Court dismisses the review application, confirming its original decision.

Practical implications

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For lawyers

Finality of Supreme Court rulings

Do not file review applications at the Supreme Court based on alleged errors of law or fact. Only file under the Slip Rule for clerical errors, or in the four exceptional circumstances outlined in Fredrick Otieno Outa v. Jared Odoyo Okello. Any other request will be dismissed. Also, bias claims must be raised during the main hearing with solid evidence, not discovered later online.

For businesses

End of litigation at Supreme Court

Once the Supreme Court rules on your commercial dispute, that is usually final. You cannot ask the same Court to reconsider its legal conclusions. This means you must build your best case at the first hearing. If you think a judge is biased, raise it immediately with clear proof, not after the ruling.

For individuals

Your one shot at the Supreme Court

If you lose a case at the Supreme Court of Kenya, you generally cannot ask them to change their mind. You can only point out a small typing or clerical error. This judgment makes it clear that using a repealed law or claiming bias after the fact won't work. Make sure all your arguments are presented the first time.

Frequently asked questions

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Can I appeal a Supreme Court decision in Kenya?+

No. The Supreme Court of Kenya is the highest court. You cannot appeal its decisions. You can only ask for a correction of a typo or accidental slip, or in very rare cases like fraud or if the judgment was based on a law that no longer exists.

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

The slip rule is found in Section 21(4) of the Supreme Court Act. It allows the Court to correct clerical errors, accidental slips, or omissions in a judgment. It cannot be used to re-argue your case or change the Court's legal reasoning.

Can a Supreme Court judge in Kenya be biased because of their own case?+

No. The Court said a judge is not automatically biased just because they are a litigant in a different case. To prove bias, you need objective evidence that a reasonable person would think the judge was unfair. Personal suspicion is not enough.

Can I get a Supreme Court judgment reviewed if the law used was repealed in Kenya?+

Only if the judgment was based on a law that was repealed before your case was decided. If the law was in place when your case started and was applied correctly, the repeal does not make the judgment wrong. You must prove the law was already invalid at the time of the ruling.

Later judgments citing this (19)

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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, "Robert Tom Martins Kibisu v Republic", Case Analysis (2018). Petition 3 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/34/eng@2018-02-28

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