E K M & another v J M M [2017] KECA 675 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to revive a withdrawn appeal, confirming it will only reopen concluded matters in truly exceptional circumstances.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should exercise its residual jurisdiction to review and/or set aside its own ruling delivered on 21st April 2016 deeming the applicants' notice of appeal withdrawn
- 2.Whether the applicants demonstrated an exceptional situation justifying review of a concluded decision of the Court
Key legal issues
#Whether the Court has jurisdiction to review its own decisions
The Court has residual jurisdiction under section 3A to review its own decisions, but it is exercised cautiously and only in exceptional situations serving the interest of justice.
Relying on Standard Chartered Financial Services v Manchester Outfitters, which itself drew on the Rai, Nguruman and Benjoh decisions, the Court confirmed that the 2010 Constitution justifies an expansive reading of its residual jurisdiction. However, that jurisdiction exists to correct errors occasioning real injustice and is exercised only where obviating injustice outweighs the finality principle.
Whether the applicants established an exceptional situation warranting review of the ruling of 21st April 2016
No. The applicants' assertion that they inadvertently overlooked that an appeal had already been filed was incredible and unsupported, so the ruling deeming the notice of appeal withdrawn stands.
The applicants had earlier explained non-filing of the appeal on the ground that proceedings had not been supplied, but now claimed they had paid for and obtained proceedings and filed the appeal, having 'inadvertently omitted' to say so. The Court found no satisfactory explanation for this contradiction; such a fundamental fact could not have been genuinely overlooked, so the threshold of exceptionality was not met.
Legal principles established
#- The Court of Appeal has residual jurisdiction to reopen and rehear a concluded matter, but only in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation.
Court orders
#- 1.The application to review and/or set aside the ruling of 21st April 2016 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kisii
- Jurisdiction invoked
- Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act; Rules 42 and 57(2) of the Court of Appeal Rules
Relief refused
#Review and/or setting aside of the Court's ruling of 21st April 2016 deeming the notice of appeal withdrawn, and reinstatement of Civil Appeal No. 14 of 2016 for hearing on merit
The applicants failed to demonstrate an exceptional situation justifying the exercise of the Court's residual review jurisdiction; their claim of inadvertent omission was not satisfactory.
Costs
It is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this Court is clothed with residual jurisdiction to reopen and rehear a concluded matter where the interest of justice demands, but that such jurisdiction will only be exercised in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation
This Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence in the administration of justice.
The application is devoid of merit. It is dismissed with costs to the respondent. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "E K M & another v J M M [2017] KECA 675 (KLR)", Case Analysis (2017). Civil Application No. 66 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/675/eng@2017-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.