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Supreme CourtDismissedCivil Application 30 of 2020

Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others

Supreme Court of Kenya
5 March 2021
782 words in judgment
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AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Supreme Court review applications must show clear errors, not just reargue the case.

What this practically means

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The Supreme Court dismissed an application to review its earlier decision because the applicants did not meet the strict standards for review. The Court said it can review its own decisions, but only when there are strong, specific reasons to correct a clear mistake. Simply repeating arguments or claiming unfairness is not enough. The applicants also failed to properly state which constitutional or legal provisions they relied on in their original case, and that mistake could not be fixed later through written submissions.

Executive summary

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This was an application by Paul Amuga and another (the Applicants) seeking stay and review of the Supreme Court's Ruling dated 4th September 2020, which had allowed a preliminary objection by the 1st Respondent (Independent Electoral and Boundaries Commission) and struck out the Applicants' petition. The Applicants argued that the Court failed to consider their filed submissions, thereby denying them a fair hearing. The 1st Respondent opposed the application, citing inordinate delay in filing submissions and arguing that the petition's defect—failure to indicate the constitutional or statutory provisions relied upon—could not be cured through submissions. The Supreme Court, in a unanimous decision, dismissed the application. The Court held that while it has jurisdiction to review its decisions under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020, the application did not satisfy the principles for review established in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others. The Court found that the Applicants failed to provide sufficient and cogent reasons to depart from its earlier decision. Additionally, the Court held that the defect in the original petition—failure to specify the constitutional or statutory provisions—was substantive and could not be remedied through submissions, citing several authorities including Daniel Kimani Njihia v. Francis Mwangi Kimani & another and Rose Jebor Kipngok v. Kiplagat Kotut. The Court ordered each party to bear its own costs.

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 for stay and review of the Ruling and orders of this Court dated 4th September 2020 satisfies the principles for review of its decisions as set out in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others
  2. 2.Whether the Applicants were denied a fair hearing by the Court failing to consider their filed submissions
  3. 3.Whether the defect in the Petition (failure to indicate constitutional provisions) could be cured through submissions

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review its own decisions

Holding

The Supreme Court has jurisdiction to consider an application for review of its decisions under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020.

Reasoning

The Court acknowledged its jurisdiction under the cited rules but found that the application did not meet the established principles for review. The Court noted that the Applicants failed to provide sufficient and cogent reasons to depart from its earlier decision, and the defect in the original petition (failure to indicate constitutional provisions) could not be cured by submissions.

02

Whether the Applicants were denied a fair hearing

Holding

The Applicants were not denied a fair hearing; their submissions were considered but did not cure the fundamental defect in their petition.

Reasoning

The Court found that the Applicants' contention that they were denied a fair hearing was not supported. The defect in the petition—failure to indicate the constitutional or statutory provisions relied upon—was a substantive defect that could not be remedied through submissions. The Court cited several authorities requiring parties to establish the relevant provisions when coming before the Court.

Legal principles established

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  • The Supreme Court has jurisdiction to review its own decisions under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020.
  • A review application must provide sufficient and cogent reasons for the Court to depart from its earlier decision, as established in Jasbir Singh Rai and Fredrick Otieno Outa cases.
  • A party must clearly state the constitutional or statutory provisions they rely on in their petition; this defect cannot be cured through later submissions.
  • The Court will not grant a review simply because a party claims they were denied a fair hearing if their submissions were considered but found insufficient.
  • Each party bears its own costs in a review application that fails to meet the required standards.

Court orders

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  1. 1.The Notice of Motion application by the Applicants dated 29th October 2020 and filed on 30th October 2020 is hereby dismissed
  2. 2.Each party shall bear its costs thereof

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 Petition (App.) No. 4 of 2012 (reference to earlier ruling, not the decision below)
Jurisdiction invoked
Rules 3(5) and 28(5) of the Supreme Court Rules, 2020

Relief refused

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Stay of the Ruling and orders of this Court dated 4th September 2020

The application did not satisfy the principles for review of its decisions

Review and setting aside of the Ruling and orders of this Court dated 4th September 2020

The Applicants did not provide sufficient and cogent reasons for this Court to consider and depart from its decision

Costs

Each party shall bear its costs thereof

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.

The Notice of Motion application by the Applicants dated 29th October 2020 and filed on 30th October 2020 is hereby dismissed
p. 4 Final orders dismissing the application
Each party shall bear its costs thereof
p. 4 Costs order
The Applicants did not establish what constitutional or statutory provisions they sought to rely Upon in their Petition of Appeal before this Court, and which defect could nonetheless not be effectively remedied through the submissions
p. 3 Requirement to specify constitutional provisions in petition

Key timeline

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2020-09-04
Supreme Court issued a Ruling allowing a preliminary objection by IEBC and striking out the applicants' petition.
2020-10-29
Applicants filed a Notice of Motion seeking stay and review of the September 4 Ruling.
2020-10-30
Application was filed in court.
2020
Supreme Court dismissed the application, holding it did not meet review principles.

Practical implications

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For lawyers

Draft petitions with precision

Ensure every petition explicitly cites the constitutional or statutory provisions relied upon. This case confirms that such defects are fatal and cannot be fixed through submissions. When filing a review application, you must show a clear error in the earlier decision, not just reargue the case. Reference the Jasbir Singh Rai and Fredrick Otieno Outa principles to frame your arguments.

For businesses

Finality of court decisions

Businesses involved in litigation should understand that Supreme Court decisions are rarely reopened. To succeed in a review, you must prove a specific, serious mistake in the original ruling. This high bar means you should invest in getting your case right the first time, especially when challenging decisions by bodies like IEBC. Plan your legal strategy with finality in mind.

For individuals

Get your case right first time

If you are taking a case to the Supreme Court, make sure your initial petition clearly states which laws or constitutional rights you are relying on. You cannot fix a missing legal basis later. Also, do not expect the Court to revisit its decision just because you disagree with it. You need strong, new reasons showing a clear error in the original ruling.

Frequently asked questions

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

Yes, the Supreme Court has the power to review its own decisions under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020. However, this power is exercised only in exceptional cases where the applicant provides strong, specific reasons showing a clear error in the earlier decision.

What happens if I forget to include a legal basis in my Supreme Court petition in Kenya?+

If you fail to state the constitutional or statutory provisions you rely on in your petition, that defect is considered fatal. The Court will not allow you to fix it through later written submissions. Your case may be struck out, as happened in this case.

What are the grounds for reviewing a Supreme Court decision in Kenya?+

To get a review, you must satisfy the principles from the Jasbir Singh Rai and Fredrick Otieno Outa cases. This means you must show sufficient and cogent reasons for the Court to depart from its earlier decision, such as a clear error of law or fact, or discovery of new and important evidence.

Does the Supreme Court always award costs to the winning party in Kenya?+

No, not always. In this case, the Court ordered each party to bear its own costs, even though the application was dismissed. This means the applicants did not have to pay the IEBC's legal fees. Costs are at the Court's discretion and depend on the circumstances of each case.

Cite this brief

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Cite this brief

Caselaw, "Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others", Case Analysis (2021). Civil Application 30 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/62/eng@2021-03-05

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