Nairobi, Kenya: Since 1992, the Kenya Commercial Bank (KCB) has been embroiled in more than 20 court cases with two companies; Muiri Coffee Estate Ltd and Benjoh Amalgamated Ltd.
The cases relate to a multi-million shillings loan given by KCB to Benjoh Amalgamated in 1989 secured with two properties in Kiambu and Nyandarua and guaranteed by Muiri Coffee Estate. The companies defaulted in repayment and the bank moved to auction its property.
The disputer went to the High Court. At some point, the parties signed a consent that Benjoh and Muiri pay the total outstanding sums, principal and interest to the bank before July 31, 1992 failure to which KCB would be free to sell the land.
A new file was reconstituted but it did not have most of the documents. It however had an affidavit by Benjoh Director Kung’u Muigai sworn on March 3, 1992 in support of an application for injunction to restrain the KCB from selling the two properties in Kiambu for Sh70 million when the properties were worth more than Sh700 million.
The application itself was not in the file but there was a copy of the order given on May 4, 1992. It showed that in the missing application, Benjoh and Muiri were seeking orders to be allowed to negotiate for sale of the land to pay off the loan or the repayment be rescheduled. And KCB be restrained from selling the land when the negotiations were underway.
Benjoh went back to court claiming the consent was fraudulent as they had not consented to it. They asked that the consent order entered on May 4, 1992 be set aside or reviewed.
On October 31, 1997 the High Court set aside the consent order. This ruling was overturned by the Court of Appeal on March 10, 1998.
On November 9, 2012, some 14 years later, Benjoh and Muiri went back to the Court of Appeal seeking certification of their appeal. In the alternative they asked the Court of Appeal to review the March 10, 1998 judgement.
Under Article 163(4) of the Constitution, the Supreme Court is mandated to hear appeals from the Court of Appeal, especially involving the interpretation or application of the Constitution; or if a matter is certified to be of general public importance.
Benjoh and Muiri argued that theirs involved a matter of public importance. They said the Court of Appeal could not have overturned the High Court’s judgement without referring to the record of the consent order. They claimed they had been denied fair trial under Article 50 of the new Constitution, which had been enacted in August 2010, some 12 years after the Court of Appeal judgement.
Their lawyer, Tom Wachakana, told the judges that since the Court of Appeal was no longer the court of final resort, they had power to review their own judgment.
He contended that the court erred in endorsing a judgement given on the basis of a consent that was not there. No judicial decision could be made on the basis of a missing court record.
KCB lawyer Philip Nyachoti opposed the application saying the court had no jurisdiction to grant the orders sought.
Nyachoti contended that having decided on the matter, the Court of Appeal could not preside over it again and it was out of their hands. “The only avenue open to the applicant is to move to the Supreme Court under Article 163(4)(b),” the lawyer submitted.
Nyachoti also pointed out to the judges that the parties had had numerous other cases before the High Court and Court of Appeal saying litigation had to come to an end.
The Court of Appeal was therefore to determine if the application seeking certification to appeal to the Supreme Court, was on a matter of general public importance.
The judges said, “These issues are not issues that transcend the interest of the parties in the litigation, nor do they impact in any way on society, much less bear on public interest.” With that the judges declined to issue a certificate under Article 163(4)(b) of the Constitution.
They pointed out that the High Court and the Court of Appeal judgements were made before the new Constitution had been enacted hence long before the Supreme Court had been established by the Constitution.
The Supreme Court had already ruled in another case that decisions of the Court of Appeal made before promulgation of the Constitution on August 27, 2010 cannot be re-opened through an appeal to the Supreme Court. A certification to appeal to the Supreme Court cannot be issued even if the intended appeal raises a matter of general public importance.
But the bigger question before the judges was whether the Court of Appeal could review its own decision.
The question whether the Court of Appeal has jurisdiction to review its judgements has been divided. Decisions prior to the promulgation of the 2010 Constitution show that the court held conflicting views on the matter. The judges analysed various decisions from different courts across the world.
Coming back to Kenya, they observed that before the new Constitution, the Court of Appeal took the position that it did not have jurisdiction to review its own decisions since it was the court of final resort. The Supreme Court had now been introduced as the court of final resort, they noted.
“However, in view of the fact that the Supreme Court’s jurisdiction is limited by the Constitution and does not encompass hearing of appeals that do not evince issues of general public importance, it is clear to see that a lot of litigation will end up in this (Court of Appeal) and decisions thereof will be final,” they said.
The judges pointed out that though the Court of Appeal did not have mandate expressly stated in law allowing it to review its decisions, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same.
They held that the Court of Appeal has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence in the administration of justice.
Turning to the application by the two companies, the court observed that they had filed it 14 years after the judgement of the Court of Appeal. The judgement itself was made long before the new Constitution came into place.
“That is a long period of time. All along they were alive to the issues relating to the review. It seems doubtful whether they would have applied to this Court for review if the 2010 Constitution had not established the Supreme Court before which they desired to ventilate their grievance. In short, the grounds on which they seek review are not dissimilar to those they intended to pursue in the Supreme Court which were all along known to them.
“In our view, no case has been made for the court to invoke its residual jurisdiction to review the decision,” they concluded.
With that the court dismissed the application by Benjoh and Muiri to review the judgement and ordered them to pay costs to the respondent.
The writer is a court reporter with the Standard Group
iwahome@standardmedia.co.ke
