Beth Muthoni Njau & another v City Finance Bank Ltd [2018] KECA 156 (KLR)
The bottom line
#Kenya's Court of Appeal refused to re-open its own judgment to add interest, holding that a deliberate silence on interest is not a correctable error.
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's judgment of 16th June 2017 contained an error apparent on the face of the record by omitting to award interest on the principal sum
- 2.Whether the Court should exercise its residual jurisdiction to review and re-open its own judgment to award interest to the applicants
- 3.Whether rule 35 of the Court of Appeal Rules on correction of clerical and accidental slips applies
Key legal issues
#Whether the omission of interest from the Court of Appeal judgment was an error apparent on the face of the record warranting review
No error was established; the earlier bench considered the appeal and deliberately declined or omitted to award interest, and its discretion cannot be faulted on review.
The court examined the impugned judgment, quoted its disposition, and concluded the learned judges considered the appeal before rendering judgment. Silence on interest was not an accidental slip: had the bench intended to award interest, it would have said so. The criteria for interference with a judicially exercised discretion were not met, so the residual review jurisdiction could not be invoked to re-open a sound decision.
The scope of the Court of Appeal's residual jurisdiction to review its own decisions
The residual jurisdiction exists but is limited to matters promoting public interest and enhancing public confidence in the rule of law, exercised cautiously.
Relying on Benjoh Amalgamated, the court reiterated that its decisions were historically clothed with finality and that only under the 2010 Constitution has it asserted a residual jurisdiction to re-open decisions, exercisable circumspectly and confined to errors of law occasioning real injustice. The applicants' mere dissatisfaction with the interest outcome did not meet that threshold.
Applicability of rule 35 of the Court of Appeal Rules
Rule 35 on correction of clerical and accidental slips does not apply where the judgment is silent on interest as a matter of judicial choice.
The applicants' fall-back basis was that the omission was a slip correctable under rule 35. The court held that a deliberate exercise of discretion not to mention interest is neither clerical nor accidental, so the slip-correction mechanism cannot be used to achieve what review could not.
Legal principles established
#- The Court of Appeal, not being the final court, has only a residual jurisdiction to review its own decisions, to be exercised cautiously and only to correct errors of law that have occasioned real injustice or where the review will promote public interest and public confidence in the justice system.
- Where an appellate court deliberately makes no award of interest, its silence cannot be characterised as an error apparent on the face of the record so as to found a review; a reviewing court cannot substitute its own discretion for that of the original bench.
Court orders
#- 1.The applicants' Notice of Motion dated 4th July 2017 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi, Milimani
- H.C. C.C. No. 107 of 2008
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; the Court's residual jurisdiction to review its own decisions as articulated in Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
Relief refused
#Review of the Court's judgment of 16th June 2017 to award interest on the principal amount of Kshs. 42,000,000
No error apparent on the face of the judgment was established; the court below in the appeal exercised its discretion judiciously and deliberately did not award interest
Correction of the judgment under rule 35 of the Court of Appeal Rules as an accidental slip
Rule 35 dealing with clerical and accidental slips is inapplicable to a deliberate silence on interest
Costs
The application 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.
The upshot of the foregoing is that the applicants’ Notice of Motion dated 4th July, 2017 is bereft of merit and we accordingly dismiss it with costs.
There was no error apparent on the face of the judgment established by the applicants to clearly show that a significant injustice has occurred.
The court exercised its discretion properly and judiciously and in the absence of the criteria set for our interference, we cannot unilaterally fault the court in the manner it reached its decision.
Rule 35 of the Court of Appeal Rule, dealing with correction of clerical and accidental slips are not applicable in the circumstances of this matter.
Issues in the judgment
#Internal inconsistency in the date of the judgment sought to be reviewed: the header states the judgment was made on 16th June 2016 while the body repeatedly states it was delivered on 16th June 2017.
The court notes the applicants cited Sections 31 and 35 of the Appellate Jurisdiction Act whereas they apparently meant rules 31 and 35 of the Court of Appeal Rules.
The quoted passage from the prior judgment contains an internal inconsistency, describing a judgment of Shs. 66 million 'set aside and substituted' with a figure expressed as Shs. 66 million less set-off, yet the ruling elsewhere records the substitution as a judgment for Kshs. 42,000,000.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beth Muthoni Njau & another v City Finance Bank Ltd [2018] KECA 156 (KLR)", Case Analysis (2018). Civil Application No. 271 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/156/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.