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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 44 of 2016· [2016] KECA 44 (KLR)

Hassan Musambayi Mbaruku v Nashon Aseka

Court of Appeal
16 December 2016
1,797 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 can review its own decisions, but only in rare cases involving fraud, bias or clear injustice.

What this practically means

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Executive summary

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This is a review application brought by Hassan Musambayi Mbaruku, acting in person, seeking to have the Court of Appeal at Kisumu review, rescind or vary its own judgment of 27th May 2016 in Civil Appeal No. 96 of 2015, which had dismissed his appeal against the High Court's dismissal of his claim for cancellation of the respondent's title to land parcel ISUKHA/SHIRERE/345 sold to the respondent. The applicant advanced three grounds: an alleged error apparent on the face of the judgment (the case heading referring to the High Court rather than the Environment and Land Court); discovery of new evidence being Kenya Gazette Notice No. 14346 of 5th October 2012 purporting to show that Chitembwe, J. was never gazetted as an Environment and Land Court judge; and a letter suggesting the suit land was agricultural land requiring Land Control Board consent. The Court first confirmed that it possesses residual jurisdiction to review its own decisions, as set out in Benjoh Amalgamated and Jimnah Mwangi Gichanga, exercisable cautiously, with circumspection, and only in exceptional circumstances such as fraud, bias or other injustice. It held the threshold was not met: the High Court had jurisdiction to finalise part-heard land proceedings under section 22 of the Sixth Schedule to the Constitution and section 30 of the Environment and Land Court Act, and the Chief Justice's Gazette Notice of 9th February 2012 so directed. Citing Isaac Obiuwevbi v Central Bank of Nigeria, it reiterated that jurisdiction is assessed at the time suit is instituted. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to review its own judgments

Holding

The Court has residual jurisdiction to reopen a decided matter notwithstanding absence of express conferment, exercisable only in cases of fraud, bias or other injustice, with circumspection, and in decisions not appealable to the Supreme Court.

Reasoning

Relying on its own precedents in Benjoh Amalgamated and Jimnah Mwangi Gichanga, the Court affirmed that a court of final resort may review its decisions to correct fraud, bias or injustice, balancing the finality principle (public interest in conclusive litigation) against the justice principle, but the jurisdiction must be invoked cautiously and only in exceptional circumstances promoting public confidence in the rule of law.

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02

Whether the applicant met the threshold for review

Holding

He did not. The alleged error (heading of the judgment), the Gazette Notice on Chitembwe, J.'s appointment, and the Commissioner's letter did not establish fraud, bias or injustice warranting review.

Reasoning

The Court had already fully considered the jurisdiction of Chitembwe, J. in the original appeal and reiterated that the judge had jurisdiction to finalise the part-heard case, since the High Court remained seized of land cases partly heard under the repealed Constitution and the Chief Justice's Gazette Notice of 9th February 2012 conformed with section 22 of the Sixth Schedule. The new evidence and alleged error did not displace that conclusion.

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03

Jurisdiction of a High Court judge to finalise part-heard land proceedings after establishment of the Environment and Land Court

Holding

Such proceedings continue before the same court under section 22 of the Sixth Schedule and section 30 of the Environment and Land Court Act, and the Chief Justice's practice directions kept part-heard matters in the High Court.

Reasoning

The suit was filed in 1998 and partly heard before the 2011 Environment and Land Court Act, but ELC judges were only appointed on 5th October 2012. Section 22 of the Sixth Schedule required pending judicial proceedings to continue before the same or a corresponding court, and the Chief Justice's Gazette Notice No. 1617 of 9th February 2012 directed part-heard matters to continue before the High Court.

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Legal principles established

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  • The Court of Appeal possesses residual jurisdiction to review its own decisions, to be exercised cautiously and with circumspection, and only in exceptional circumstances that serve public confidence in the rule of law.
  • The jurisdiction of a court to entertain an action is determined by the law conferring jurisdiction at the time the suit is instituted and trial commences, so part-heard proceedings pending under the repealed Constitution continue before the same court under section 22 of the Sixth Schedule.

Court orders

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  1. 1.The application for review is dismissed with costs to the respondent
On appeal from
Court of Appeal
Civil Appeal No. 96 of 2015
Jurisdiction invoked
Residual jurisdiction of the Court of Appeal to review its own decisions, invoked under rules 2(6), 5(2), 29(1)(a) and (b), 35(2) and 57 of the Court of Appeal Rules and sections 3(1), 3(A), 3(B) of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hassan Musambayi Mbaruku v Nashon Aseka", Case Analysis (2016). Civil Application No. 44 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/44/eng@2016-12-16

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