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Court of AppealDismissedCivil Appeal No. 144 of 2013

Shikuku Mason Sitera & another v Ben Kumbuti Wasilwa [2018] KECA 319 (KLR)

Court of Appeal of Kenya
20 September 2018
976 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed you cannot use its 'correction of errors' rule to sneak in a full review of a judgment you simply disagree with.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret on a notice of motion dated 16th August 2017 by which the applicants, Shikuku Mason Sitera and Everlyne Nakhungu Juma, sought review, variation and rectification of the judgment of 20th July 2017 (Musinga, Gatembu & Murgor, JJ.A.) which had dismissed their appeal against the revocation by the High Court (Ngenye, J.) of a grant in the estate of Wachenda Mason. The earlier judgment had upheld the finding that the deceased had sold and transferred Kakamega/Chekalini/238, so the grant including it was fraudulently obtained. In the motion the applicants invoked Rule 35 of the Court of Appeal Rules, contending there was an error on the face of the record concerning the omission of two parcels, N.Kabras/Silunga/485 and N.Kabras/Silunga/134, from an agreement dated 24th December 1986 and from the judgment. The respondent opposed, arguing the Court could only correct arithmetical or clerical errors. The Court (Githinji, Okwengu & Mohammed, JJ.A.) held that the corrections sought were neither clerical nor arithmetical; the alleged omission was a substantive issue concerning the propriety of the judgment that cannot be dealt with by way of correction. Applying Benjo Amalgamated Limited & Muiri Coffee Estate Limited v Kenya Commercial Bank Limited, it found the residual review jurisdiction had stringent conditions that the applicants had not met, there being no demonstrated error of law occasioning injustice or public interest. The motion was dismissed with costs. The ruling binds lower courts on the narrow scope of Rule 35 and the cautious exercise of any residual review power.

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' motion falls under Rule 35 of the Court of Appeal Rules as a correction of a clerical or arithmetical error
  2. 2.Whether the Court should exercise its residual jurisdiction to review, vary or rectify its judgment of 20th July 2017

Key legal issues

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01

Scope of Rule 35 of the Court of Appeal Rules

Holding

Rule 35 applies only to clerical or arithmetical mistakes, accidental slips or omissions, or orders not corresponding with the judgment; a substantive challenge to the propriety of a judgment cannot be brought under it.

Reasoning

The Court reproduced Rule 35 and compared it with the applicants' motion, which sought to 'review, vary and or rectify anomalies' in the judgment. The alleged omission of land parcel N.Kabras/Silunga/134 arising from a 1986 agreement was a substantive issue concerning the propriety of the judgment, going to the merits decided after trial, and therefore outside the narrow correction power.

p. 2
02

Residual power to review the Court of Appeal's own decision

Holding

Even assuming a residual review jurisdiction exists, the stringent conditions for its exercise were not met: no error of law occasioning injustice and no public interest was demonstrated.

Reasoning

Relying on Benjo Amalgamated Limited & Muiri Coffee Estate Limited v Kenya Commercial Bank Limited, the Court reiterated that any residual review power exists only to correct errors of law causing real injustice or miscarriage of justice, eroding public confidence, and must be exercised cautiously. The applicants did not satisfy either limb, so the motion failed.

p. 2

Legal principles established

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  • Rule 35 of the Court of Appeal Rules permits correction only of clerical or arithmetical mistakes or accidental slips or omissions to give effect to the Court's intention; it does not extend to reviewing or varying the substantive judgment
  • The Court of Appeal has only a residual jurisdiction to review its own decisions, to be exercised cautiously where errors of law have occasioned real injustice or a miscarriage of justice and where public interest is served

Court orders

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  1. 1.The applicants' notice of motion dated 16th August 2017 seeking review, variation and rectification of the judgment of 20th July 2017 is dismissed with costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Eldoret (Ngenye, J.)
SUCC. CAUSE NO. 59 OF 2011
Jurisdiction invoked
Rule 35 of the Court of Appeal Rules (correction of errors); residual jurisdiction to review own decisions

Relief refused

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Review, variation and/or rectification of the judgment delivered on 20th July 2017, including restoration of land parcel N.Kabras/Silunga/134

The corrections sought were neither clerical nor arithmetical; the alleged error is a substantive issue concerning the propriety of the judgment, and the applicants failed to demonstrate errors of law occasioning injustice or public interest justifying the residual review power

p. 2

Costs

The application is dismissed with costs (costs to the respondent)

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.

It is evident from the applicant’s motion that the corrections sought to be made were neither clerical nor arithmetical corrections.
p. 2Scope of Rule 35 - correction of errors
That is a substantive issue concerning the propriety of the judgment. It cannot be dealt with by way of correction.
p. 2Distinction between correction and review
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.
p. 2Residual review jurisdiction (quoting Benjo Amalgamated)
In the circumstances, we find no merit in the applicant’s motion. It is accordingly dismissed with costs.
p. 2Final orders - dismissal

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, "Shikuku Mason Sitera & another v Ben Kumbuti Wasilwa [2018] KECA 319 (KLR)", Case Analysis (2018). Civil Appeal No. 144 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/319/eng@2018-09-20

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