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Supreme CourtDismissedApplication E017 of 2023

Dari Limited & 5 others v East African Development Bank

Supreme Court of Kenya
7 November 2023
1,327 words in judgment
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The bottom line

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Supreme Court review is only for fraud, nullity, or concealed law—not new evidence.

What this practically means

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The Supreme Court dismissed an application by Raphael Tuju to review its earlier ruling. The court said it can only review its own decisions in very limited cases: if the decision was obtained by fraud or deceit, if it is a nullity, if the court mistakenly believed both sides consented, or if it relied on a law that was repealed or deliberately hidden. Trying to introduce new evidence to change the court's mind is not allowed—that would be asking for a second chance to argue the same case.

Executive summary

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This was an application for review of the Supreme Court's ruling of October 6, 2023, which had dismissed the applicants' application for conservatory orders. The applicants, Raphael Tuju and another, sought to have paragraph 34 of that ruling set aside, arguing that the court made erroneous factual suppositions about the respondent, African Development Bank, being a reputable international bank with no difficulty compensating the applicants if they succeeded, and about diplomatic immunity. They introduced new evidence, including a Moody's rating report and East African cases where the respondent raised immunity defences. The court, applying the principles from Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, held that the Supreme Court's power to review its own decisions is limited to exceptional circumstances: fraud or deceit, nullity, mistaken belief of consent, or reliance on a repealed or concealed law. The applicants failed to demonstrate any of these grounds. Their attempt to introduce new evidence not previously before the court was an impermissible attempt to relitigate the matter and have a second bite at the cherry. The application 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 applicants have demonstrated exceptional circumstances warranting review of the court's ruling of October 6, 2023 under section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules, 2020.

Key legal issues

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01

Whether the applicants demonstrated exceptional circumstances to warrant review of the court's ruling of October 6, 2023.

Holding

The applicants failed to demonstrate any of the recognized exceptional circumstances (fraud, deceit, nullity, mistaken consent, or reliance on a repealed/concealed law). Their attempt to introduce new evidence did not meet the threshold.

Reasoning

The court applied the test from Fredrick Otieno Outa v Jared Odoyo Okello & 3 others, which limits review to four specific categories. The applicants' arguments about erroneous factual suppositions regarding the respondent's reputation, financial status, and diplomatic immunity did not fall within any of these categories. The new evidence (Moody's rating report and East African cases) was not before the court during the original application and could not be used to relitigate the matter.

Legal principles established

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  • The Supreme Court cannot hear appeals against its own decisions, except to correct obvious errors on the face of the ruling.
  • Review of a Supreme Court decision is only allowed in four exceptional circumstances: fraud, deceit, nullity, mistaken consent, or reliance on a repealed or concealed law.
  • Introducing new evidence that was not before the court during the original application does not qualify as an exceptional circumstance for review.
  • An applicant cannot use a review application to relitigate a case or have a second bite at the cherry.
  • The court will not reconsider its ruling just because the applicant disagrees with the factual findings or legal conclusions.

Court orders

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  1. 1.The notice of motion dated October 12, 2023 and filed on October 13, 2023 is hereby dismissed.
  2. 2.The costs of this application shall be borne by the applicants.

The bench

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

majority

Wrote the judgment

Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Application No E048 of 2023 (Ruling of October 6, 2023)
Jurisdiction invoked
Articles 50, 163(1) and (4), 159(2)(d) and (e) of the Constitution; sections 3A, 21(2), 21A(a), 23A and 24(1) of the Supreme Court Act, 2011; rules 28(5), 31 and 32 of the Supreme Court Rules 2020

Relief refused

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Review, vary, vacate and/or set aside paragraph 34 of the ruling dated October 6, 2023 and grant the orders sought in the application dated April 25, 2023

The applicants failed to demonstrate exceptional circumstances; the application was a disguised appeal seeking a second bite at the cherry.

Costs

The costs of this application shall be borne by the applicants.

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.

As a general rule, the Supreme Court cannot sit on appeal over its own decisions, or to review its decisions, save to correct obvious errors apparent on the face of the decision.
p. 4 Review jurisdiction of the Supreme Court
What the applicants have tried to do is to introduce new evidence, which was not before the court during the application for conservatory orders, in the quest to persuade this court to change its mind and rule in their favour.
p. 4 Improper attempt to introduce new evidence on review
we have no hesitation in declaring that, as framed, the application falls short of the exceptional circumstances, and we decline the invitation to exercise the court’s limited discretion to review the ruling.
p. 4 Failure to meet review threshold
The notice of motion dated October 12, 2023 and filed on October 13, 2023 is hereby dismissed.
p. 5 Final order dismissing the application
The costs of this application shall be borne by the applicants.
p. 5 Costs order

Key timeline

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2023-10-06
Supreme Court dismissed the applicants' application for conservatory orders against the African Development Bank.
2023-10-13
Applicants filed a notice of motion seeking review of the October 6 ruling, arguing erroneous factual suppositions.
2024
Supreme Court dismissed the review application, holding that new evidence does not justify review.

Practical implications

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For lawyers

Limit review arguments to four grounds

When drafting a review application before the Supreme Court, focus strictly on the four exceptional grounds from Fredrick Otieno Outa v Jared Odoyo Okello: fraud, deceit, nullity, mistaken consent, or reliance on a repealed/concealed law. Do not attempt to introduce new evidence that was available earlier—this will be rejected as an impermissible second bite at the cherry.

For businesses

Finality of Supreme Court rulings

If your business loses a case at the Supreme Court, do not expect to reopen it by presenting new evidence later. The court will only revisit its decision in extreme cases like fraud or if the law it relied on was secretly repealed. Ensure all your strongest evidence is presented during the initial hearing, as review is not a second chance.

For individuals

No second chance with new evidence

If you lose a case in the Supreme Court, you cannot simply bring new documents or reports later to ask the court to change its mind. The court only reviews its decisions if there was fraud, a hidden law, or a fundamental mistake like both parties not actually agreeing. Make sure you present all your evidence the first time.

Frequently asked questions

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Can I appeal a Supreme Court decision in Kenya?+

No, the Supreme Court is the highest court in Kenya. You cannot appeal its decisions. However, you can apply for a review in very limited cases, such as if the decision was obtained by fraud, is a nullity, or relied on a law that was repealed or deliberately hidden.

What are the grounds for review of a Supreme Court ruling in Kenya?+

The Supreme Court can only review its own decisions in four exceptional circumstances: fraud or deceit, nullity of the proceedings, mistaken belief that both parties consented, or if the decision was based on a repealed law or a deliberately concealed statutory provision.

Can I introduce new evidence in a Supreme Court review application in Kenya?+

No. Introducing new evidence that was not before the court during the original application is not allowed. The court sees this as an attempt to have a second bite at the cherry and will dismiss it. All evidence must be presented during the initial hearing.

What happened in Raphael Tuju v African Development Bank at the Supreme Court of Kenya?+

Raphael Tuju and another party applied to review a Supreme Court ruling that dismissed their request for conservatory orders against the African Development Bank. They tried to introduce new evidence, including a Moody's rating report. The court dismissed the application, saying new evidence does not justify review.

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, "Dari Limited & 5 others v East African Development Bank", Case Analysis (2023). Application E017 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/93/eng@2023-11-07

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