Gulbahar v Muiyoro t/a Spotted Zebra & another (Civil Appeal (Application) 305 of 2018) [2026] KECA 701 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to reopen a 2016 damages judgment, confirming that review only applies in exceptional cases like fraud — not where a party simply disagrees with how evidence was weighed.
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 applicant has made out a case for review, setting aside and/or correction of the Court's judgment delivered on 25th November 2016
Key legal issues
#Scope of the Court of Appeal's jurisdiction to review its own judgment
The jurisdiction exists but is limited and exceptional, exercisable only in exceptional circumstances such as fraud, nullity, or where the court was misled, as identified by the Supreme Court in Fredrick Otieno Outa v Jared Odoyo Okello
Drawing on Benjoh Amalgamated, Niels Bruel and Cape Holdings, the court held that a court of final resort has residual jurisdiction to reopen decided matters in cases of fraud, bias or other injustice, but this must be invoked with circumspection to preserve finality of litigation while doing justice to parties. Alleged errors in evaluation of evidence fall outside this jurisdiction.
Whether alleged errors apparent on the face of the record regarding special damages justified review
No. Dissatisfaction with the court's analysis and evaluation of evidence is an appeal in disguise, not a ground for review.
The applicant argued the court erred in finding that special damages of Kshs 3,800,000 had been proved, given the 1st respondent's admission that he dismantled his own structures. The court held that such grievances about the assessment of evidence are properly matters of appeal, not of the exceptional residual review jurisdiction; entertaining them would create an illegitimate tier of appeals.
Legal principles established
#- The Court of Appeal's residual jurisdiction to review its own decisions is exceptional and is exercised sparingly, with circumspection, only in cases of fraud, bias or other injustice
- Allegations that a court misapprehended the law or misapprehended evidence are grounds of appeal, not grounds for invoking the Court of Appeal's exceptional residual review jurisdiction
- An invitation to the Court of Appeal to reconsider its evaluation of the evidence is an appeal disguised as an application for review and will be rejected
Court orders
#- 1.Dismissal of the notice of motion dated 24th October 2018 seeking review, setting aside and/or correction of the judgment delivered on 25th November 2016
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Appeal No. 20 of 2014
- Jurisdiction invoked
- Rule 42 of the Court of Appeal Rules, Sections 3(2) and 3A of the Appellate Jurisdiction Act (residual review jurisdiction of the Court of Appeal)
Relief refused
#Review, setting aside and/or correction of the judgment of 25th November 2016
No exceptional circumstances established; the applicant's grievances amount to an appeal against the court's evaluation of evidence disguised as a review application
Setting aside the award of special damages or remitting the matter for a fresh determination on quantum
Fell with the dismissed review application; dissatisfaction with the court's analysis of evidence is a ground of appeal, not review
Costs
No orders as to costs (application was undefended)
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.
it is axiomatic that this Court has jurisdiction to do so. But that jurisdiction is exceptional and has to be exercised sparingly and with circumspection to thwart disaffected parties who merely seek a second bite of the cherry
the exceptional residual jurisdiction of the Court will be triggered in the rare instances where the Court is satisfied that the judgment in question was made without jurisdiction, or is tainted by fraud, corruption, violation of the rules of natural justice
the applicant's invitation for us to reconsider the evidence in light of his explanations, is an appeal against the decision of the Court disguised as an application for review
Consequently, the notice of motion dated 24th October, 2018 is hereby dismissed. As the application was undefended, we make no orders as to costs.
Issues in the judgment
#Internal chronological inconsistency: the application is dated 24th October 2018 but the applicant's submissions are dated 18th February 2026, and the judgment is delivered on 25th March 2026 - an approximately seven-year gap between the application and its hearing that the judgment does not explain
The court refers to the case as 'Benjoh Amalgamaged Limited' in one instance and 'Benjoh Amalgamated Limited (supra)' in another, an inconsistent spelling of the same authority
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gulbahar v Muiyoro t/a Spotted Zebra & another (Civil Appeal (Application) 305 of 2018) [2026] KECA 701 (KLR)", Case Analysis (2026). Civil Appeal No. 20 of 2014 (Review Application dated 24th October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/701/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.