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Supreme CourtDismissedPetition 21 (E023) of 2020

Member of Parliament Balambala Constituency v Abdi & 7 others

Supreme Court of Kenya
22 September 2023
1,498 words in judgment
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AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Supreme Court cannot review its own decisions unless there is fraud, deceit, or a legal error.

What this practically means

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The Supreme Court dismissed an application to review its earlier judgment. The Court explained that once it makes a final decision, it cannot reopen the case just because one party is unhappy. The only exceptions are rare situations like fraud, deceit, or the Court being misled. The applicant did not prove any of these, so the application was thrown out.

Executive summary

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This ruling concerns an application by Abdi Ahmed Abdi, the 1st respondent in the main appeal, seeking review, variation, and setting aside of the Supreme Court's judgment delivered on June 16, 2023. The applicant also sought alternative declaratory orders regarding the geographical location of certain sub-locations in Garissa County. The application was brought under Articles 50(1), 159, and 163(7) of the Constitution, sections 3, 21, and 21A of the Supreme Court Act, and rule 28(5) of the Supreme Court Rules. The applicant argued that the judgment was based on misrepresentation of geographical facts and that exceptional circumstances warranted review. The appellant and several respondents opposed the application, contending that it was an attempt to relitigate the appeal, did not meet the threshold for review, and that the court was functus officio. The Supreme Court dismissed the application, holding that the applicant failed to demonstrate any of the exceptional circumstances required for review as set out in the Fredrick Otieno Outa decision. The court found that the application was disguised as a review but was in fact an appeal seeking to reopen matters already determined with finality. The court emphasized that review is not meant to afford a losing party an opportunity to re-litigate merely because they are unhappy with the outcome. The court also noted that the applicant introduced a whole new cause of action, which cannot be entertained through a review. The applicant was ordered to bear the costs of the appellant, the 5th respondent, and the 8th respondent.

Questions the Court framed

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

  1. 1.Whether the application meets the threshold for review of a Supreme Court judgment as set out in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review its own judgment in the absence of exceptional circumstances.

Holding

The Supreme Court lacks jurisdiction to review its own judgment unless the application falls within the exceptional circumstances set out in Fredrick Otieno Outa.

Reasoning

The court reiterated that as a general rule, it has no jurisdiction to sit on appeal over its own decisions or review them except as provided under section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, the court may review its judgments in exceptional circumstances limited to: fraud or deceit; nullity; being misled into giving judgment under mistaken belief of consent; or judgment based on a repealed law or deliberately concealed statutory provision. The applicant failed to demonstrate any of these grounds.

02

Whether the application for review is an attempt to relitigate the appeal.

Holding

The application is disguised as a review but is in fact an appeal seeking to re-argue and reopen matters already determined with finality.

Reasoning

The court found that the applicant was asking the court to relitigate issues already determined with finality and to issue new declarations that were not part of the original appeal. The court noted that review is not meant to afford a losing party an opportunity to re-litigate merely because they are unhappy with the outcome. The application introduced a whole new cause of action, which cannot be entertained through a review.

Legal principles established

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  • The Supreme Court cannot sit on appeal over its own decisions.
  • A review is not a chance to re-litigate a case because you lost.
  • The Court becomes functus officio (final) after deciding an appeal.
  • Exceptional grounds for review are limited to fraud, deceit, nullity, or being misled.
  • A review cannot introduce a new cause of action not in the original appeal.

Court orders

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  1. 1.The notice of motion dated June 29, 2023 and filed on July 3, 2023 be and is hereby dismissed
  2. 2.The applicant shall bear the appellant’s, the 5th and 8th respondents' costs

The bench

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

majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules

Relief refused

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Review, vary and set aside the judgment and order of this court delivered on June 16, 2023

The application does not meet the exceptional circumstances threshold for review set out in Fredrick Otieno Outa

Dismissal of the Petition dated December 16, 2020

The application is an attempt to relitigate matters already determined with finality

Declarations as to the location of Abdisamit, Auliya and Laago sub-locations

A whole new cause of action has been introduced at this late hour; review can never issue in such circumstances

Costs

The applicant shall bear the appellant’s, the 5th and 8th respondents' costs.

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.

as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor review its own decisions, other than in the manner contemplated by section 21(4) of the Supreme Court Act
p. 4 Jurisdiction of the Supreme Court to review its own decisions
an application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome.
p. 5 Purpose of review applications
once the court has determined an appeal from the Court of Appeal, it becomes functus officio, and such a judgment stands until it is departed from in a future case or reviewed with the exceptional circumstances outlined earlier.
p. 5 Functus officio doctrine
The notice of motion dated June 29, 2023 and filed on July 3, 2023 be and is hereby dismissed;
p. 5 Final orders dismissing the application
The applicant shall bear the appellant’s, the 5th and 8th respondents' costs.
p. 5 Costs order

Key timeline

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2023-06-16
Supreme Court delivered judgment in the main appeal.
2023-06-29
Applicant filed notice of motion seeking review of the judgment.
2023-07-03
Application was formally filed in court.
Ruling date
Supreme Court dismissed the review application with costs.

Practical implications

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For lawyers

Limit review applications to narrow grounds

When advising clients on Supreme Court review, stress that only exceptional grounds—fraud, deceit, nullity, being misled, or a repealed law—will succeed. Do not file a review merely to re-argue the case. This ruling confirms that such applications will be dismissed with costs, wasting client resources.

For businesses

Finality of Supreme Court decisions

Once the Supreme Court rules on your case, that decision is final. You cannot ask the Court to reconsider just because you disagree. If you have new evidence or believe there was fraud, you must prove it clearly. Otherwise, focus on complying with the judgment rather than challenging it.

For individuals

Understand your limited appeal options

If you lose a case at the Supreme Court in Kenya, you generally cannot appeal again. The only way back is if you can show the Court was tricked or made a serious legal mistake. This is very rare. Most people must accept the outcome and move on.

Frequently asked questions

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Can I appeal a Supreme Court decision in Kenya?+

No, the Supreme Court is the highest court. Its decisions are final. You can only ask for a review in very limited cases like fraud or if the Court was misled. This ruling confirms that a review is not a second appeal.

What are the grounds for review of a Supreme Court judgment in Kenya?+

The grounds are narrow: fraud or deceit, nullity of the judgment, the Court being misled into giving judgment under a mistaken belief, or the judgment based on a repealed law. You must prove one of these clearly.

What happens if I lose a review application in the Supreme Court of Kenya?+

The Court will dismiss your application and order you to pay the other side's legal costs. This ruling shows that the Court treats improper review applications as an abuse of process.

Can I introduce new evidence in a Supreme Court review in Kenya?+

No, a review is not meant to introduce a new case or new evidence. It is only for correcting errors in the original judgment. This ruling rejected an application that tried to raise a new cause of action.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Member of Parliament Balambala Constituency v Abdi & 7 others", Case Analysis (2023). Petition 21 (E023) of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/80/eng@2023-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.