Yako Supermarket (K) Limited & another v National Land Commission & 3 others (Civil Appeal (Application) 14 of 2021) [2024] KECA 125 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reopen its judgment, confirming that late 'discovered' documents won't save a lost case unless you were genuinely diligent.
What this practically means
#Executive summary
#Key legal issues
#Residual jurisdiction of the Court of Appeal to review its own judgments
The Court has inherent and residual jurisdiction to review its own decisions, but only where exceptional circumstances exist and a gross injustice would otherwise result
The Court traced its jurisprudence in Benjoh Amalgamated and Standard Chartered Financial Services, holding that although the Court is not the final court, it retains residual jurisdiction to reopen concluded matters where the need to obviate injustice outweighs the principle of finality in litigation. This jurisdiction must be exercised with great circumspection and only in exceptional situations.
Due diligence requirement for additional evidence
A party seeking to adduce additional evidence after judgment must demonstrate that they exercised due diligence and did everything possible to obtain the documents while litigation was ongoing; post-judgment letters alone do not suffice
The applicants' letters requesting the files were all written in June 2023, a month after judgment, with no evidence of earlier efforts. As petitioners they bore the burden of proving their case and could have used procedural mechanisms such as Notice to Produce or discovery. Their failure to do so, despite knowing the files were missing, defeated the due diligence requirement.
Authentication and credibility of additional evidence
Additional evidence tendered on review must be authenticated; unauthenticated documents stamped 'certified' by an unknown official lack probative value
The 16 and 14 documents respectively lacked a forwarding letter from the Ministry of Lands and an affidavit by an official confirming their bona fides. The only indicium of authenticity was a stamp by an unknown official. The Court therefore held the credibility of the documents seriously called into question and found their probative value reasonably impugned.
Additional evidence as patching up a failed case
Review jurisdiction will not be exercised to allow an unsuccessful party to fill gaps in their case, especially gaps identified by the court in its judgment
The missing files were never part of the applicants' case at trial or on first appeal; the application appeared tailored to respond to Mumbi Ngugi, JA's findings that no evidence was presented on how the vendors' titles were allocated. The Court characterised the belated introduction of evidence as an afterthought aimed at strengthening weak links identified on appeal.
Legal principles established
#- The Court of Appeal has inherent and residual jurisdiction to review its own judgments and orders, to be exercised cautiously, sparingly, and only in exceptional circumstances to avert gross injustice
- An applicant seeking review based on additional evidence must satisfy both the high threshold for review and the exacting threshold for adduction of additional evidence on appeal, including demonstrable due diligence in obtaining the evidence before judgment
- A party cannot use additional evidence on appeal to make a fresh case, fill omissions, or patch up weaknesses in their case identified by the court
Court orders
#- 1.The application dated 23rd July, 2023 is dismissed with costs to the 4th respondent
- On appeal from
- Court of Appeal of Kenya
- Judgment delivered 26th May, 2023 (Kiage, Mumbi Ngugi & Tuiyott, JJAs)
- Jurisdiction invoked
- Sections 3(2) and 3A of the Appellate Jurisdiction Act; Rules 1(2), 35(2) and 42 of the Court of Appeal Rules; Article 159(2)(d) of the Constitution of Kenya; the Court's inherent and residual jurisdiction to review its own judgments
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yako Supermarket (K) Limited & another v National Land Commission & 3 others (Civil Appeal (Application) 14 of 2021) [2024] KECA 125 (KLR)", Case Analysis (2024). Review Application dated 23rd July, 2023 (following Civil Appeal judgment of 26th May, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/125/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.