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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 2 of 2019· [2019] KECA 379 (KLR)

Kamau James Gitutho Njendu T/A Gitutho Associates v Multiple Icd (k) Limited & 1 other

Court of Appeal of Kenya
21 August 2019
4,994 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Visram, Karanja & Koome, JJ.A) on an application dated 4th February 2019 by four consultants seeking review of the Court's own judgment of 27th June 2018 in Civil Appeal No. 77 of 2017. In that judgment the Court had allowed the respondents' appeal against a High Court decree awarding the applicants professional fees of Kshs. 219,170,713 plus interest, holding instead that the parties' discussions of 8th May 2010 orally varied the initial consultancy contract, that the applicants were entitled only to Kshs. 83,798,196.39 which had been paid, that no interest was payable, and that the 1st respondent was not privy to the contract. The applicants invoked the Court's residual jurisdiction, asserting errors of law and fact, infringement of Articles 40, 41, 47 and 50, and reliance on foreign authority including Taylor v Lawrence. The respondents opposed, contending the application merely sought an appeal against the Court's own decision. The Court set out a three-part threshold for reopening a concluded judgment: injustice or miscarriage of justice; erosion of public confidence in the administration of justice; and no appeal lying against the decision. It held the applicants established none of the alleged errors, that grievances of dissatisfaction lie in an appeal to the Supreme Court under Article 163(4), and that the application was in effect an attempt to make the Court sit on appeal against its own judgment. The application was dismissed with costs on 21st August 2019.

Key legal issues

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01

Existence and scope of the Court of Appeal's residual jurisdiction to reopen its own concluded judgment

Holding

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.

Reasoning

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.

p. 2
02

Whether the applicants established exceptional circumstances or errors on the face of the record warranting review

Holding

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.

Reasoning

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.

p. 6
03

Whether disagreement with a judgment is a proper basis for its review

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.