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Case Brief · caselaw.co.ke
Supreme CourtDismissedApplication 9 of 2021

Tawai Limited v Eldoret Express Limited; National Land Commission (Interested Party)

Supreme Court of Kenya
3 December 2021
922 words in judgment
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·~4 min to read original · ~4 min brief

The bottom line

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Supreme Court can only review its own rulings in four very narrow situations.

What this practically means

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The Supreme Court of Kenya has made it clear that it will not reopen its own decisions unless there is fraud, the court lacked jurisdiction, the parties were tricked into consenting, or the ruling relied on a repealed or hidden law. In this case, a company asked the court to review its earlier ruling, but failed to prove any of these grounds. The court dismissed the application and ordered the company to pay the costs.

Executive summary

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This was an application by M/S Kenya Builders and Concrete Limited seeking to review, vary, or set aside the Supreme Court's ruling of March 17, 2021 in SC Application No 23 of 2020, which had upheld the Court of Appeal's decision denying certification to appeal to the Supreme Court under Article 163(4)(b) of the Constitution. The applicant argued that the ruling was in breach of Article 50, resulted from oversight, contained errors on the face of the record, and was a whimsical exercise of discretion. The respondent did not file any response despite several mentions. The Supreme Court, applying the principles from Fredrick Otieno Outa v Jaren Odoyo Okello and 3 Others, held that it could only review its decisions on four limited grounds: fraud or deceit, nullity, mistaken consent, or reliance on repealed/concealed law. The court found that the applicant had not demonstrated any of these grounds. The court dismissed the motion, affirmed its earlier ruling, and ordered the applicant to bear the costs. The judgment reaffirms the strict limits on the Supreme Court's power to review its own decisions.

Questions the Court framed

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

  1. 1.Whether the applicant has laid any basis for this court to review its ruling under the principles set out in Fredrick Otieno Outa v Jaren Odoyo Okello and 3 Others

Key legal issues

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Whether the Supreme Court has jurisdiction to review its own decision dismissing an application for certification under Article 163(4)(b) of the Constitution

Holding

The Supreme Court has jurisdiction to review its own decisions, but only on the four limited grounds established in Fredrick Otieno Outa v Jaren Odoyo Okello and 3 Others. The applicant failed to demonstrate any of those grounds.

Reasoning

The court noted that the applicant had already invoked the court's jurisdiction under Article 163(5) via Application No 23 of 2020, which was dismissed. The applicant then sought a review of that dismissal. The court applied the principles from Fredrick Otieno Outa, which strictly limit review to cases of fraud, nullity, mistaken consent, or reliance on repealed/concealed law. The applicant's allegations of breach of Article 50, oversight, errors on the face of the record, and whimsical exercise of discretion did not fall within these categories. The court found no basis for review and dismissed the motion.

Legal principles established

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  • The Supreme Court's power to review its own decisions is strictly limited to four specific grounds.
  • A party cannot use a review application to re-argue a case already decided.
  • Allegations of breach of fair hearing or judicial error do not automatically justify a review.
  • The four review grounds are: fraud, nullity, mistaken consent, or reliance on repealed/concealed law.
  • A review application must clearly demonstrate which of the four grounds applies.
  • Costs follow the event; the losing party in a review application bears the costs.

Court orders

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  1. 1.The motion dated July 22, 2021 and filed on July 27, 2021, is hereby dismissed
  2. 2.This court’s ruling delivered on March 17, 2021 in Application No 23 of 2020, is hereby affirmed
  3. 3.The costs of this application shall be borne by the applicant

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
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
On appeal from
Supreme Court of Kenya
SC Application No 23 of 2020
Jurisdiction invoked
Article 163(5) of the Constitution; section 21(4) of the Supreme Court Act

Relief refused

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Review, vary and/or set aside the court's ruling of March 17, 2021

None of the conditions set out in Fredrick Otieno Outa v Jaren Odoyo Okello and 3 Others were demonstrated as prevailing

Costs

The costs of this application shall be borne by the applicant

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.

None of the conditions as set out in Outa (supra) have been demonstrated as prevailing so as to warrant a review or variation of the court’s ruling.
p. 4 Failure to meet threshold for review

Key timeline

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2020
Kenya Builders and Concrete Limited filed Application No 23 of 2020 seeking certification to appeal to the Supreme Court.
2021-03-17
Supreme Court dismissed Application No 23 of 2020, upholding the Court of Appeal's denial of certification.
2021-07-22
Kenya Builders and Concrete Limited filed a motion to review, vary, or set aside the March 17 ruling.
2021-07-27
The motion was formally filed in court.
Ruling date
Supreme Court dismissed the review motion and affirmed its earlier ruling.

Practical implications

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For lawyers

Limit review arguments to Outa grounds

When advising clients on Supreme Court review, focus exclusively on the four Outa grounds: fraud, nullity, mistaken consent, or reliance on repealed/concealed law. Do not waste resources on arguments about judicial error, oversight, or breach of fair hearing unless they fit squarely into one of these categories. The court will not entertain creative expansions.

For businesses

Finality of Supreme Court rulings

Once the Supreme Court rules against your company, the chances of reopening that decision are extremely low. Only if you can prove fraud, that the court lacked jurisdiction, or that the ruling was based on a hidden or repealed law will a review succeed. Plan your litigation strategy accordingly and do not rely on review as a routine fallback.

For individuals

If you lose a case at the Supreme Court, you cannot simply ask for a review because you disagree with the decision. The court will only reconsider if there was fraud, the court had no power to hear the case, you were tricked into agreeing, or the law used was outdated or hidden. This is a very high bar.

Frequently asked questions

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Can the Supreme Court of Kenya review its own decisions?+

Yes, but only in four specific situations: if the decision was obtained by fraud, if the court lacked jurisdiction, if the parties were misled into consenting, or if the ruling was based on a repealed or deliberately concealed law. This is a very strict rule.

What is the Fredrick Otieno Outa case in Kenya?+

The Outa case is a landmark Supreme Court decision that set the four limited grounds on which the court can review its own rulings. It is the key authority for any review application at the Supreme Court level in Kenya.

How do I apply for review of a Supreme Court ruling in Kenya?+

You must file a motion clearly showing that your case falls within one of the four Outa grounds: fraud, nullity, mistaken consent, or reliance on repealed/concealed law. Simply arguing that the court made an error or that your rights were violated is not enough.

What happens if my review application fails in the Supreme Court of Kenya?+

The court will dismiss your application and affirm its earlier ruling. You will also be ordered to pay the costs of the review application. There is no further appeal from a Supreme Court review decision.

Cite this brief

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Cite this brief

Caselaw, "Tawai Limited v Eldoret Express Limited; National Land Commission (Interested Party)", Case Analysis (2021). Application 9 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/24/eng@2021-12-03

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