Daniel Lago Okomo v Safari Park Hotel Ltd & another [2018] KECA 261 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it will almost never review its own judgments — losing a case alone is not a reason to reopen it.
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 Notice of motion dated 11th April 2018 discloses any basis for the Court of Appeal to review its own judgment of 8th December 2017
- 2.Whether Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act apply to review proceedings in the Court of Appeal
- 3.Whether the applicant, acting in person, has demonstrated fraud, bias or other injustice sufficient to invoke the Court's residual review jurisdiction
Key legal issues
#Scope of the Court of Appeal's jurisdiction to review its own judgments
The Court has an inherent residual jurisdiction to review its decisions only in exceptional cases of fraud, bias or other injustice, to be exercised with great caution and circumspection, and only where the decision is not appealable to the Supreme Court.
Historically the Court held its decisions final and unreviewable, as in Lakhamshi Brothers and re-affirmed by a five-judge bench in Jasbir Singh Rai. After the 2010 Constitution created the Supreme Court as the apex court, the Court adopted the Benjoh position recognising residual review jurisdiction. That jurisdiction balances the finality principle against the justice principle, is invoked with circumspection, and seldom succeeds.
Whether the applicant's motion met the threshold for review
The application disclosed no error, fraud, bias or injustice capable of founding review; it was an incoherent tirade against judges whose decisions the applicant disliked, resting on procedural provisions inapplicable to the Court.
The motion invoked Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, both inapplicable to appellate proceedings. Its grounds consisted of unsubstantiated allegations of judicial misconduct, supposed registry interference and assertions that a different judge wrote the judgment. The Court found nothing on the face of the application justifying review and cautioned against the proliferation of such applications.
Duties and constraints of a litigant in person
A pro se litigant is afforded consideration for disadvantages in matters of law, but must still prove the case within accepted procedural and substantive parameters and gains no licence to vilify judges and opponents.
The Court acknowledged the customary indulgence shown to self-represented litigants on questions of law, but stressed that this accommodation does not displace the obligation to place requisite material before the court, as counsel for the respondents submitted. The applicant's affidavit contained scurrilous attacks on Ougo, J., which the Court declined to entertain beyond noting them.
Legal principles established
#- Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act do not apply to review applications in the Court of Appeal.
- The Court of Appeal possesses only a residual, exceptional jurisdiction to review its own judgments, exercisable cautiously in cases of fraud, bias or other injustice where no appeal lies to the Supreme Court.
- Review of the Court of Appeal's own judgments is not available merely because a losing litigant is dissatisfied; the bar is exceptionally high and dismissal is the more likely outcome.
- Acting in person does not excuse a litigant from proving his case within the accepted parameters of procedural and substantive law, nor confer a licence to insult judges and opponents.
Court orders
#- 1.The application dated 11th April 2018 seeking review of the judgment of 8th December 2017 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (Nairobi)
- Civil Appeal No. 74 of 2015
- Jurisdiction invoked
- Residual (inherent) jurisdiction of the Court of Appeal to review its own decisions as recognised in Benjoh Amalgamated Ltd v Kenya Commercial Bank, following the promulgation of the 2010 Constitution
Relief refused
#Review and setting aside of the judgment of Visram, Karanja and Koome JJ.A delivered on 8th December 2017 and entry of judgment as prayed in the amended plaint
The application disclosed nothing justifying review; review is exceptional and unavailable merely because a losing litigant is unhappy
Nullification of the hearing before Ougo, J. and of the proceedings from 28th November 2012 to the ruling of 7th November 2013 on the basis of res judicata under section 7 of the Civil Procedure Act
Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act are inapplicable to proceedings before the Court of Appeal, and no fraud, bias or injustice was demonstrated
Costs
This application fails and is accordingly dismissed with costs.
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.
Expressing itself as brought under Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, which we state straight away are inapplicable to proceedings before this Court
it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same
We do not review judgments just because a losing litigant is unhappy and despondent. We have no jurisdiction to do so. And we must state quite categorically that the proliferation of application for review of this Court's judgments in recent times is a trend that must be checked.
This application fails and is accordingly dismissed with costs.
Issues in the judgment
#The affidavit's swearing date is internally inconsistent, bearing both a handwritten and a typed date
The judgment spells the case name 'JASBIR SIGH RAI' while elsewhere using the name Jasbir Singh Rai, an apparent typographical inconsistency in the authority as cited
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Orata International Limited v National Environmental Management Authority (Environment and Land Appeal E008 of 2020) [2025] KEELC 4199 (KLR)[2025] KEELC 4199 (KLR)22 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Daniel Lago Okomo v Safari Park Hotel Ltd & another [2018] KECA 261 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 74 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/261/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.