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Court of AppealDismissedCourt of Appeal application for review arising from Nairobi ELC Case No 646 of 2014 (appeal judgment dated November 19, 2021)

Ashmi Investment Limited v Riakina Limited & another (Civil Appeal (Application) 384 of 2019) [2023] KECA 410 (KLR)

Court of Appeal of Kenya
14 April 2023
2,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed an attempt to reopen its 2021 land ruling, confirming it will only review its own judgments in exceptional cases involving fraud, bias, or real injustice.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal, by Notice of Motion dated March 8, 2022, under sections 1A, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 and Order 51 of the Civil Procedure Rules, seeking review of the Court's judgment of November 19, 2021 dismissing its appeal from the Environment and Land Court (Bor, J) in Nairobi ELC Case No 646 of 2014. The motion raised fourteen grounds, of which only two (error apparent on the face of the record and sufficient reason, plus a lis pendens contention) were pertinent to review; the rest restated the applicant's evidentiary case on title, allotment, the deed plan and alleged fraud. The Court held that the Civil Procedure Act and Rules do not govern review applications in the Court of Appeal, but following Kariuki vs Kariuki and Kivae Residents Organization, and Article 159(2)(d), a motion citing the wrong provisions is not fatally defective. On the merits, applying Benjoh Amalgamated, the Court reiterated that its residual review jurisdiction is exercised cautiously and only in exceptional circumstances - fraud, bias, or other injustice - where the need to obviate injustice outweighs the finality principle. None of the grounds disclosed errors of law occasioning real injustice, and the application could not become a merit review of the Court's own judgment. The Motion was dismissed with costs to the 1st respondent. The prior judgment of November 19, 2021 therefore stands undisturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the application is proper in form
  2. 2.whether the applicant has made a case for review in exercise of this Court’s residual jurisdiction to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence
  3. 3.what orders ought to be made, including orders as to costs

Key legal issues

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01

Whether a motion brought under the wrong provisions (Civil Procedure Act and Order 45) is fatal

Holding

No - the court applies Article 159(2)(d) and considers the motion on its merits despite defective form.

Reasoning

The Civil Procedure Act and Rules apply to the High Court and subordinate courts, not the Court of Appeal; the correct route for relief in this Court is its own Rules. Following Kariuki vs Kariuki and Kivae Residents Organization, failure to cite the correct provision does not disentitle an applicant, given the constitutional command to administer justice without undue regard to procedural technicalities.

p. 2
02

Whether the applicant made a case for review of the Court's own judgment

Holding

No - only two of fourteen grounds (error apparent on the face of the record; sufficient reason) were relevant to review, and none disclosed errors of law occasioning real injustice.

Reasoning

The residual jurisdiction to reopen a decided matter exists only in cases of fraud, bias, or other injustice, exercised with circumspection. The remaining twelve grounds were an argumentative restatement of the applicant's case on evidence - title, deed plan, allotment, fraud, proof - which do not disclose errors of law. A review cannot culminate in a merit review of the Court's own judgment.

p. 3
03

What constitutes 'exceptional circumstances' for review

Holding

Circumstances must be well outside the normal run of cases; the jurisdiction is invoked only where the need to obviate injustice outweighs the finality principle.

Reasoning

Relying on Style Industries and Manchester Outfitters, exceptional circumstances depend on the facts of each case and are not closable in a list; they need not be unique or very rare but must be truly an exception rather than the rule. The Supreme Court in the second Manchester Outfitters case extended review parameters to circumstances meeting the ends of justice, including judgments obtained by fraud, nullities, or decisions per incuriam.

p. 4

Legal principles established

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  • The Civil Procedure Act and Rules do not govern the exercise of the Court of Appeal's jurisdiction in applications for review of its own decisions; failure to cite the correct provision does not disentitle an applicant to a merits determination.
  • A wrongly-cited provision renders a motion defective in form but not fatally so; the court proceeds under Article 159(2)(d) in the interest of substantive justice.
  • The Court of Appeal has residual jurisdiction to review its own decisions only in exceptional circumstances - fraud, bias, or other injustice - exercised with circumspection, and a review application cannot become a merit review of the judgment.
  • To merit review, an applicant must demonstrate errors of law occasioning real injustice; grounds that merely restate evidentiary grievances do not suffice.

Court orders

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  1. 1.The applicant's Notice of Motion dated March 8, 2022 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

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
Environment and Land Court
Nairobi ELC Case No 646 of 2014
Jurisdiction invoked
The Court's residual jurisdiction to review its own decisions (the Civil Procedure Act and Rules cited by the applicant were held inapplicable to the Court of Appeal)

Relief refused

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Review and variation/setting aside of the Court's judgment and order dated November 19, 2021

The applicant failed to demonstrate errors of law occasioning real injustice or circumstances falling within the recognized instances for review of a concluded appeal

p. 4

Costs

The Motion is hereby dismissed with costs to the 1st 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.

Accordingly, the Motion is hereby dismissed with costs to the 1st respondent.
p. 4Disposition
we must be alive to the principle that what is sought cannot culminate in a merit review of our own judgment.
p. 3Limits of review jurisdiction
this Court is clothed with residual jurisdiction to reopen and rehear a concluded matter where the interest of justice demands, but that such jurisdiction will only be exercised in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation
p. 4Residual review jurisdiction
Though glaringly in want of form having been made under the wrong provisions of law, the applicant’s Motion is not fatally defective so as to warrant striking out on that account only.
p. 2Defective form

Issues in the judgment

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minor

The second judge's name is printed as 'F SICHALE' in the signature block, an apparently irregular rendering; recorded as printed.

minor

Internal inconsistency in paragraph 12: twelve grounds are described as 'the remaining twelve (2)'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ashmi Investment Limited v Riakina Limited & another (Civil Appeal (Application) 384 of 2019) [2023] KECA 410 (KLR)", Case Analysis (2023). Court of Appeal application for review arising from Nairobi ELC Case No 646 of 2014 (appeal judgment dated November 19, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/410/eng@2023-04-14

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