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Court of AppealDismissedReview Application dated 23rd July, 2023 (following Civil Appeal judgment of 26th May, 2023)

Yako Supermarket (K) Limited & another v National Land Commission & 3 others (Civil Appeal (Application) 14 of 2021) [2024] KECA 125 (KLR)

Court of Appeal of Kenya
9 February 2024
5,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicants, who had lost a petition before the Environment and Land Court (Matheka, J.) challenging the National Land Commission's revocation of their titles to two Kakamega parcels, and whose appeal was dismissed by the Court of Appeal (Kiage, Mumbi Ngugi & Tuiyott, JJAs) on 26th May 2023, applied for review of that judgment on the basis of newly 'discovered' documents from the Ministry of Lands. They contended the documents, obtained only after judgment because files were missing, would show the properties were regularly allocated and not reserved as a playing field for the 4th respondent. Only the 4th respondent opposed, arguing the Court was functus officio, that no due diligence was shown, and that the application was a fishing expedition. The Court (Okwengu, H.A. Omondi & Joel Ngugi, JJAs) affirmed its residual jurisdiction to review its own judgments but held the threshold is high and, where additional evidence is involved, the applicant must satisfy both the review and additional-evidence tests simultaneously. The application failed on four grounds: no demonstrated due diligence (the requesting letters were written only in June 2023, after judgment); failure to use available procedural mechanisms such as Notice to Produce; lack of authentication of the documents; and the transparently afterthought nature of the application, aimed at patching up weaknesses identified by the Court. The application was dismissed with costs to the 4th respondent.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to review its own final judgment after delivering decision
  2. 2.Whether the application for review and adduction of additional evidence is merited

Key legal issues

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01

Residual jurisdiction of the Court of Appeal to review its own judgments

Holding

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

Reasoning

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.

p. 7
02

Due diligence requirement for additional evidence

Holding

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

Reasoning

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.

p. 9
03

Authentication and credibility of additional evidence

Holding

Additional evidence tendered on review must be authenticated; unauthenticated documents stamped 'certified' by an unknown official lack probative value

Reasoning

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.

p. 9
04

Additional evidence as patching up a failed case

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The application dated 23rd July, 2023 is dismissed with costs to the 4th respondent

The bench

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

majority
majority
majority
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

Relief refused

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Review and setting aside of the Court of Appeal judgment of 26th May, 2023 and consideration of newly 'discovered' documents

Applicants failed to demonstrate due diligence in obtaining the documents during litigation; the documents are unauthenticated; and the application is an attempt to patch up a failed case

p. 10

Costs

Dismissed with costs to the 4th respondent, who was the only respondent to respond to the application

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.

the Court has jurisdiction to review its decisions, the threshold for the exercise of that jurisdiction is quite high. The Court will only do so where exceptional circumstances are present and the Court is called upon to avert a gross injustice.
p. 7Residual review jurisdiction - threshold
the applicants must jump through a double hoop: to persuade the Court that the very high threshold for the exercise of review jurisdiction has been met; and that the equally exacting threshold for adduction of additional evidence has been satisfied.
p. 7Dual threshold for review based on additional evidence
Our review jurisdiction must never be used to permit a party a second bite at the cherry.
p. 10Finality of litigation - no patching up failed cases
The upshot is that the application dated 23rd July, 2023 is without merit. It is hereby dismissed with costs to the 4th respondent who is the only one who responded to the application.
p. 10Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment contains inconsistent parcel-number references: the applicants are described as owners of 'Kakamega Town Block II/292' but the purchase narration and ELC judgment refer to 'Kakamega/Municipality Block II/92' or 'Kakamega Town Block 11/92'

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, "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.