Makori & another v Cooperative Marchant Bank Ltd & another
The bottom line
#Kenya's Court of Appeal refused to reopen its 2021 land sale judgment, confirming review is only for exceptional cases like fraud, not for relitigating lost arguments.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have made a compelling and exceptional case inviting the Court, by its residual power, to review its judgment delivered on 18th June 2021
Key legal issues
#Whether the threshold for invoking the Court of Appeal's residual review jurisdiction was met
The threshold was not met; the application was dismissed with costs.
The Court restated the three-part threshold from Kamau James Gitutho (injustice or miscarriage of justice; erosion of public confidence; no appeal lies) and the exceptional circumstances in Fredrick Otieno Outa (fraud, nullity, misled consent, repealed law or concealed provision). It found none established: the applicants simply disagreed with the Court's re-evaluation of evidence as first appellate court, which is an appellate grievance, not a ground for review.
Whether review may be used as a second appeal or rehearing
No; a party is not entitled to review merely to obtain a rehearing and a fresh decision.
Relying on Benjoh Amalgamated and Standard Chartered Financial Services v Manchester Outfitters, the Court reaffirmed the principle of finality of decisions; departure is justified only by substantial and compelling circumstances. The applicants' complaints about misinterpretation of facts and law were matters for appeal, and no further appeal lay, but that alone does not open the review door.
Legal principles established
#- The Court of Appeal's residual jurisdiction to review its own decisions is exercised with caution, only in exceptional cases, and only where the established threshold of injustice, erosion of public confidence and no appeal lying is met.
- Review jurisdiction cannot be used to re-litigate the merits of a case or address issues that should be handled through the normal appellate process; perceived misapprehension of facts or law is a ground of appeal, not review.
Court orders
#- 1.The application for review is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisii
- ELC Case No. 686 of 2016 (Formerly HCC No. 16 of 2012)
- Jurisdiction invoked
- Inherent and residual jurisdiction of the Court of Appeal to review/vary/set aside its own judgment, invoked under Rules 1(2), 42(1) and 47 of the Court of Appeal Rules, 2010 and Article 159 of the Constitution
Relief refused
#Review of the Court of Appeal judgment of 18th June 2021 overturning the findings on res judicata and the regularity of the statutory power of sale
No fraud, nullity or other exceptional circumstance established; the applicants merely disagreed with the Court's conclusions and sought a rehearing, which review jurisdiction does not permit
Costs
The application was dismissed with costs to the respondents.
Quotable passages
#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 residual jurisdiction of this Court to re-open its own decision is exercised with caution and only in exceptional cases.
Grounds that would normally form the basis of an appeal, including any perceived misapprehension of the facts or law, would not be suitable grounds that would attract the exercise of residual jurisdiction or review.
Consequently, we find no merit in this application which we dismiss with costs to the respondents.
Issues in the judgment
#Date of the superior court judgment appears inconsistently as 10th November 2017 and 11th November 2017.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori & another v Cooperative Marchant Bank Ltd & another", Case Analysis (2025). Civil Appeal (Application) 37 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2194/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.