Kamau James Gitutho Njendu T/A Gitutho Associates v Multiple Icd (k) Limited & 1 other
The bottom line
#Kenya's Court of Appeal confirmed it will only reopen its own concluded judgments in exceptional cases where real injustice is proven, not where a losing party simply disagrees.
What this practically means
#Executive summary
#Key legal issues
#Existence and scope of the Court of Appeal's residual jurisdiction to reopen its own concluded judgment
The 2010 Constitution altered the pre-2010 position of absolute finality; the Court of Appeal, though no longer the apex court, has residual jurisdiction to review its decisions to which no appeal lies, to correct errors of law occasioning real injustice.
Before the 2010 Constitution the Court of Appeal was the apex court and its decisions were final, subject only to Rule 35 for correction of clerical or arithmetical errors. The Standard Chartered case held that the new constitutional dispensation justified a departure from absolute finality, conferring residual jurisdiction. However, finality remains a governing principle, and the jurisdiction is to be exercised cautiously, balancing finality and justice.
Whether the applicants established exceptional circumstances or errors on the face of the record warranting review
The applicants failed to establish any of the alleged errors, whether as to variation of the contract, award of interest, privity of the 1st respondent, the counter-claim, or infringement of constitutional rights.
The Court found the applicants had not demonstrated error in the finding that the 8th May 2010 negotiations varied the initial contract, nor in setting aside interest or applying privity of contract to the 1st respondent. The competency of the counter-claim was neither a subject of the appeal nor raised at trial, so it could not ground review. No constitutional infringement was demonstrated.
Whether disagreement with a judgment is a proper basis for its review
Disagreement with the outcome is not a ground for review; the application amounted to inviting the Court to sit in appeal against its own decision.
Citing Daniel Lago Okomo vs Safari Park Hotel Ltd and Mukuru Munge vs Florence Shingi Mwawana, the Court held that the residual jurisdiction is not a vehicle for a dissatisfied litigant to re-litigate issues decided on the merits; such grievances lie, where at all, in an appeal to the Supreme Court under Article 163(4) of the Constitution.
Legal principles established
#- The Court of Appeal has residual jurisdiction to reopen and rehear a concluded matter where the interest of justice demands, but this jurisdiction is exercised cautiously and only in exceptional cases.
- The threshold for exercising the residual jurisdiction to reopen a concluded judgment is threefold and conjunctive.
- The Court of Appeal cannot review its own judgment merely because a losing litigant is dissatisfied; that would amount to sitting on appeal against its own decision, which is beyond its mandate.
Court orders
#- 1.The application dated 4th February 2019 seeking review of the judgment in Civil Appeal No. 77 of 2017 is dismissed with costs
- On appeal from
- Court of Appeal at Mombasa
- Civil Appeal No. 77 of 2017
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal to reopen and rehear a concluded matter where the interest of justice demands (as articulated in the Benjoh Amalgamated and Standard Chartered decisions), flowing from the 2010 constitutional dispensation
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 72 (KLR)5 Dec 2025
- Milly Glass Works Limited v Kenya Railways Corporation & 1 other[2025] KECA 1136 (KLR)20 Jun 2025
- Ethics and Anti Corruption Commission v Kenya Broadcasting Corporation & 3 others[2025] KECA 873 (KLR)23 May 2025
- Monica Jackline Wambui & 1 other v Lucy Wairimu Mwangi[2025] KECA 905 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kamau James Gitutho Njendu T/A Gitutho Associates v Multiple Icd (k) Limited & 1 other", Case Analysis (2019). Civil Application No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/379/eng@2019-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.