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THE POWER OF THE KENYAN COURT OF APPEAL TO REVIEW ITS DECISIONS.- BY KORIR DAVIS, ADVOCATE

Dec-02-2023

Whereas it is obvious that the High Court has powers to review its own decisions, the case is not clearly so to the Court of Appeal.1 The High Court may thus review its own decisions in various circumstances including : where there is discovery of new and important matter or mistake or error apparent on the face of record or for any other sufficient reason.2

THE COURT OF APPEAL AND JURISDICTION TO REVIEW DECISONS.

The Court of Appeal is superior to the High Court and the Civil Procedure Rules do not apply in the Court but its own Rules dubbed the Court of Appeal Rules published pursuant to the provisions of the Appellate Jurisdiction Act. 3 Specific reference is to the 2022 Rules which are in force at the time of publication of the Article at hand. For the High Court, the power to review its own decisions is well spelt out under the Civil Procedure Act and Rules. However, it is worthy to note that the Court of Appeal has no similar statute law as it is not bound by the Civil Procedure Rules, 2010 aforesaid.4 The position on the review powers of the Court of Appeal is not so obvious from the Court’s Rules as well. The question that bedevils most people in the circumstances is whether the Court of Appeal has review powers or not. The answer to this question is in the affirmative. The main challenge arises regarding the exact pointer to the said power of the Court. Indeed, no direct link is embedded in the Court of Appeal Rules that leads to a singular conclusion of existence of the aforesaid jurisdiction of the Court. However, the jurisdiction of the Court of Appeal to review its decisions can be inferred through holistic reading of the Rules of the Court. The power exists albeit inherently. This can be discerned clearly from Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2), 5(2)(b) and 

1 The Civil Procedure Act, Section 80 read together with Order 45 of the Civil Procedure Rules, 2010.
2 Ibid.
3 The Appellate Jurisdiction Act, Cap 9 of the Laws of Kenya.
4 See the Ruling of the Court of Appeal in Benjoh Amalgamated Limited and Another v Kenya Commercial Bank [2014] eKLR at paragraph 27.
FILE PHOTO: COURT OF APPEAL JUDGES WITH PRESIDENT RUTO.

37 of the Court of Appeal Rules 2022. Whilst the other provisions of the law deal with the inherent power of courts to review its own decisions, Rule 37 of the Court of Appeal Rules 2022 deal with a rule popularly known as the slip rule through which the review power of the Court may be invoked. It has a close similarity to the provisions of the Civil Procedure Act and Rules for the High Court as it appears to apply in instances in which the Court had rendered at decision and some material discovery has been made thereafter of course exercise of due diligence not mentioned. It is in this purview that the Court, in Benjoh (supra) held at paragraph 28 thus, “28. In this Court, save for the slip rule embedded in rule 35 of the Court of Appeal Rules which enables the Court to effect its manifest intention in a judgment or order, there is no apparent jurisdiction to review orders or judgments. And even in exercise of its inherent jurisdiction in the application of the slip rule, it seems that the Court could not travel beyond correcting errors in the judgments. Sir Charles Newbold in Lakhamshi Brothers Ltd v. Raja & Sons case (1966) E.A. 313 reiterated the words of the predecessor of this court in Raniga v. Jivraj [1965] EA 700 (K) where the court stated that; “a court will, of course, only apply the slip rule where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied beyond doubt, as to the order which it would have made had the matter been brought to its attention.” Similar position to the foregoing was subsequently held by the Court in the case of Nguruman Ltd v Shompole Group Ranch & another [2014] eKLR. In this instant case, the Court of Appeal aptly held in this front as follows: “In view of the above, there is no way this Court can hide under the umbrella of its previous decisions handed out under the mandate donated by the Act and supported by the provisions of the retired constitution which did not outlaw technicality as a tool in the dispensation of justice on the one hand and which did not have the benefit of the additional tool in the form of the ‘overriding objective principles’ now enshrined in Section 3A of the Act….[Now] that Parliament has spoken through the ‘overriding objective principles’ in Section 3A as an additional tool of aid on the one hand and the consumers of justice (the people through the Constitution on the other hand) it is time for this Court to take a bold stand in the same vein as its Tanzanian counterpart and state that on the basis of the provisions of law assessed above, jurisdiction exists in this Court to re-open, re-hear and re-determine decisions previously determined by it.”5 It is worthy of note that the review power of the Court of Appeal is a jurisdiction that is available post-2010 and could not be exercised in the pre-2010 era. Further, the rationale behind the review power of the Court is to be exercised ex abundante cautella taking into consideration a balance.

 5 Nguruman Ltd v Shompole Group Ranch & another [2014] eKLR.

between the principle of finality of cases and the justice principle. The said jurisdiction is available in the post-2010 era owing to the fact that unlike pre-2010 period, the Court of Appeal is no longer the apex court in Kenya from the time the Supreme Court was incepted. Of importance also is the fact that availability of review jurisdiction of the Court of Appeal depends on the peculiar circumstances of each case. The said position has been reiterated by the Supreme Court in the case of Manchester Outfitters (Suiting Division) Ltd (now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others [2019] eKLR in which the Court held at paragraph 54 as follows: “[54] What emerges from this disposition is that the Court of Appeal, being the final Court of the land before the enactment of the 2010 Constitution, did not have the residual jurisdiction to review or sit on appeal on its own matters. However, as it has emerged, the Court has since 2010, in some cases, expressed the wherewithal to exercise its inherent jurisdiction in circumstances that it deemed warranted the exercise of that jurisdiction. The latter is our position although we are cognizant of the fact that there are no constitutional or statutory provisions that allow this Court to sit on appeal or review of its own decisions as the final arbiter. We may however, as in the circumstances highlighted in both Rai 2 and Outa cases, review previous decisions and/or depart from previous judgments if the principles as set out in the two cases are satisfied. Judicial precedent necessitates that we sustain that position.” 6 In line with the above exposition, the Supreme Court set out some principles precedent to be taken into account while exercising the said review power by the Supreme Court which are applicable to the Court of Appeal as well. These conditions are: where there are conflicting past decisions of the Court, it may opt to sustain and to apply one of them; the Court may disregard a previous decision if it is shown that such decision was given per incuriam; a previous decision will not be disregarded merely because some, or all of the members of the Bench that decided it might now arrive at a different conclusion; and the Court will not depart from its earlier decision on grounds of mere doubts as to its correctness. The Court proceeds to set out further conditions precedent: i. the Judgment, Ruling, or Order, is obtained, by fraud or deceit; ii. the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent; iii. the Court was misled into giving Judgment, Ruling or Order.

6 Manchester Outfitters (Suiting Division) Ltd (now known as King Wollen Mills Ltd) & another v Standard Chartered Financial Services Ltd & 2 others [2019] eKLR.

under a mistaken belief that the parties had consented thereto; iv. the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of a deliberately concealed statutory provision.”7
FILE PHOTO: KENYAN COURT OF APPEAL PRESIDENT JUSTICE DANIEL KIIO MUSINGA 

CONCLUSION

The Kenyan Court of Appeal is vested with inherent jurisdiction to review its decision. This position is a clear departure from the pre-2010 era where such power was engulfed by the principle of finality in litigation. Further, the pre-2010 period saw the Court of Appeal as the apex court in Kenya which position has since shifted to the Supreme Court in the post-2010 era. The conditions precedent for exercise of the review power by the Court of Appeal and even the Supreme Court are as clearly set out from the foregoing. Upon fulfilment of the conditions precedent, the Court shall exercise its review jurisdiction as illustrated in the premise. © KORIR DAVIS, ADVOCATE, 2023.