Benjoh Amalgamated Limited v Bidii Kenya Limited & 1 other
The bottom line
#The Court of Appeal refused to reopen Benjoh Amalgamated's long-running dispute with KCB, confirming that Supreme Court decisions bind all Kenyan courts and review is only for exceptional cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court can re-open the 1992 consent order contrary to the Supreme Court's determination
The application collapses on this ground alone; the Court cannot circumvent the Supreme Court's decision that the consent was settled with finality on 10th March 1998
The Supreme Court in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd held it had no jurisdiction to reopen the consent determined by the final court of the time, and pronounced that rights had crystallized and the justice system will not tamper with them. Under Article 163(7), this Court is bound by those findings, and inviting it to reopen the same consent is an attempt to circumvent the Supreme Court's decision.
Whether the alleged new evidence (Meenye's affidavit and lack of practising certificate) merits review
No; the review jurisdiction is exceptional and the applicant's assertions were found to be dishonest and internally contradictory
The consent had existed for 32 years and been the subject of numerous decisions. The applicant never alluded to these issues in its many prior suits and applications. The Court found it implausible that Benjoh took decades to discover it never instructed its lawyer, and that it was approbating and reprobating by denying the consent while simultaneously challenging how it was entered into.
The scope of the Court of Appeal's residual jurisdiction to re-open its own decisions
The Court has residual jurisdiction to re-open a decided case only in appropriate and exceptional circumstances
Drawing on English, Australian and Indian authorities and its own precedents, the Court affirmed that residual jurisdiction exists to avoid real injustice but is tied to a discretion, exercised with caution, in cases where a judgment was obtained by fraud, is a nullity, was given without jurisdiction, or is affected by fundamental irregularity. It is not a back door for unsuccessful litigants to re-argue their cases.
Legal principles established
#- Under Article 163(7) of the Constitution, the Court of Appeal is bound by the decisions of the Supreme Court and cannot re-open a matter the Supreme Court has determined with finality
- A party is not entitled to seek review of a Court of Appeal judgment merely for a rehearing and a fresh decision; departure from finality is justified only in exceptional, substantially compelling circumstances
- To qualify as new evidence for review, the applicant must show the evidence was not adduced in the proceedings and could not have been procured with reasonable diligence, and that it is reliable, substantial and of high probative value
Court orders
#- 1.The application dated 16th February 2018 is dismissed
- 2.Costs of the application are awarded to the respondents
- On appeal from
- Court of Appeal (prior full-bench judgment under review)
- Civil Appeal Nos. 107, 137 and 174 of 2010
- Jurisdiction invoked
- Articles 25, 159, 163(4)(b), 164 and 259 of the Constitution; Rule 24(1) of the Supreme Court Rules, 2012; Sections 3, 3A & 3B of the Appellate Jurisdiction Act; Rules 1(2) and 31 of the Court of Appeal Rules (residual jurisdiction to review its own decisions)
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.
- Bosire v Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others (Employment and Labour Relations Petition E013 of 2026) [2026] KEELRC 2428 (KLR)[2026] KEELRC 2428 (KLR)20 Aug 2026applied
- Bernard Onkundi Otundo & 5 others v Creek Marketing and Development Limited[2026] KECA 1384 (KLR)10 Jul 2026followed
- Stephen Kimani Kamau v Thomas Ouma Ahinga & 4 others[2025] KECA 1865 (KLR)7 Nov 2025followed
- Cross Country Ventures Limited v Nairobi City County (Environment & Land Case 86 of 2018) [2025] KEELC 4099 (KLR)[2025] KEELC 4099 (KLR)22 May 2025
Cite this brief
#Cite this brief
Caselaw, "Benjoh Amalgamated Limited v Bidii Kenya Limited & 1 other", Case Analysis (2024). Civil Appeal Nos. 107, 137 and 174 of 2010 (Application dated 16th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/593/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.