[2023] KESC 109 (KLR)

Gachuhi & another v Evangelical Mission for Africa & another (Petition (Application) E006 of 2023) [2023] KESC 109 (KLR) (Civ) (21 December 2023) (Ruling)

Neutral citation: [2023] KESC 109 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Petition (Application) E006 of 2023

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, I Lenaola & W Ouko, SCJJ

December 21, 2023

Between

Kimani Gachuhi

1st Applicant

Peter Mbuthia Gachuhi

2nd Applicant

and

Evangelical Mission for Africa

1st Respondent

Cindy Sanyu Okova

2nd Respondent

(Being an application for review of the Ruling and Orders of this Court delivered on 30th June 2023)

Circumstances under which the Supreme Court would review its own decision.

The applicant sought for the Supreme Court to review its own judgment. The Supreme Court held that for the court to review its own decision, the application had to fulfil the provisions of section 21(A) of the Supreme Court Act. The court held that the application was an appeal disguised as a motion for review, and did not fall within the confines of the parameters for review.

Reported by John Ribia

Civil Practice and Procedure– review – application for the Supreme Court to review its own decision - what were the circumstances under which the Supreme Court would review its own decision -Supreme Court Actsection 21(A).

Brief facts The applicant sought to review a ruling of the Supreme Court and to reinstate the matter for hearing. and orders of this Court delivered on June 30, 2023; reinstatement for hearing of the Petition. The petitioner contended that the superior courts below lacked the jurisdiction to pronounce public policy on matters of enforcement of an award against private educational institutions, when no such policy had been enacted.

Issues What were the circumstances under which the Supreme Court would review its own decision?

Held

As a general rule, the Supreme Court had neither the jurisdiction to sit on appeal over its own decisions, nor the jurisdiction to review its decisions, other than in the manner contemplated by section 21(A) of the Supreme Court Act, that was where: The judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts;

The judgment, ruling or order was a nullity by virtue of having been made by a court which was not competent;

The court was misled into giving judgment, ruling or order under the belief that the parties had consented thereto; and

The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.

The applicants had not demonstrated that the impugned ruling was obtained by fraud or deceit, was a nullity, was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision, or that the court was misled into giving its ruling under review on a mistaken belief that the parties had consented thereto. The instant application was an appeal disguised as a motion for review, and did not fall within the confines of the parameters for review.

Application dismissed.

Orders Respondent was to bear the costs.

Citations Cases Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019; [2020] KESC 1 (KLR)) — Explained

Muriithi & 4 others v Law Society of Kenya & another (Civil Application 12 of 2015; [2016] eKLR 1KLR 604) — Explained

Outa v Okello & 3 others (Petition 6 of 2017; [2017] KESC 25 (KLR)) — Explained

Rai & 3 others v Rai & 4 others (Petition 4 of 2012; [2013] eKLR [2013] 1 KLR 685) — Explained

Statutes Basic Education Act, 2013 (Act No 4 of 2013) — In general — Cited

Constitution of Kenya, 2010 — article 10(1)(c), 50, 163(4), 232(1)(d) — Interpreted

Education Act (cap 211 repealed) — In general — Cited

Public Service (Values And Principles) Act, 2015 (Act No 1A of 2015) — section 12 — Interpreted

Supreme Court Act, 2017 (Act No 7 of 2017) — section 21A(a)(d) — Interpreted

Supreme Court Rules, 2020 (Act No 7 of 2011 sub leg) — rule 31(1)(6) — Interpreted

AdvocatesNone mentioned

Ruling

Representation:Mr Ondari & Ms Sadia............................................................. for the applicants(Iseme, Kamau & Maema Advocates)Ahmednasir Abdullahi, SC & Ms Rita Joyce............................. for the respondents(Ahmednasir Abdullahi Advocates LLP) 1. Upon perusing the notice of motion dated July 28, 2023 and filed on August 2, 2023, brought pursuant to section 21A(a) and (d) of the Supreme Court Act and rule 31 (1) and (6) of the Supreme Court Rules 2020, seeking to review the ruling and orders of this court delivered on June 30, 2023; reinstatement for hearing of the petition dated March 10, 2023 and filed on March 16, 2023; grant of the motion dated March 23, 2023 and filed on March 28, 2023; dismissal of the Motion dated March 30, 2023 and filed on April 4, 2023; and costs; and

2. Upon considering the applicants’ grounds on the face of the application and affidavit sworn by the 1st applicant on July 28, 2023, in which he contends that; the Judgment of the Court of Appeal (challenged in the petition struck-out) was premised on a non-existent public policy on free primary education; no such policy has been enacted under the Education Act, the Basic Education Act or any other statute; as a consequence, the impugned ruling was premised on a non-existent law and misrepresentation of facts; this court has a constitutional duty to correct the error by the Court of Appeal; and unless the said Ruling is set aside, the applicants’ constitutional rights on the interpretation and applicability of public policies, the rule of law under article 10 and to a fair hearing under article 50 of the Constitution will be violated; and

3. Further considering the applicants’ submissions dated July 28, 2023 and supplementary submissions dated September 7, 2023, to the effect that this court has jurisdiction to review its decisions, and their application meets the threshold under section 21(A) of the Supreme Court Act. Moreover, the applicants restate their grounds in support and urge that the superior courts below lacked the jurisdiction to pronounce public policy on matters of enforcement of an award against private educational institutions, when no such policy has been enacted; the public policy alleged and relied on by the said courts violated articles 232(1)(d) and 10(1)(c) of the Constitution and section 12 of the Public Service (Values and Principles) Act; this court has an inherent jurisdiction to ensure that an injustice is not committed, as was its finding in Dynes Muriithi & 4 others v Law Society of Kenya & another; SC (Application) No 12 of 2015, [2016] eKLR; therefore the Court had jurisdiction to entertain the appeal dismissed by the impugned ruling but fell in error in striking out the same; and

4. Having read the respondents’ grounds of opposition dated August 25, 2023, and filed on August 28, 2023, wherein it is urged that the application is an abuse of court process and should be dismissed in limine; this court lacks the requisite jurisdiction to hear and determine the instant application as it does not fall within the purview of section 21(A) of the Supreme Court Act; the said application does not meet the threshold settled in Fredrick Otieno Outa v Jared Odoyo Okello & 3others; SC Petition No 6 of 2014, [2017] eKLR (Fredrick Outa case); and that the Appeal which was struck out did not raise any issues of contestation revolving around the interpretation or application of the Constitution, to warrant the exercise of this court’s jurisdiction under article 163(4)(a) of the Constitution; and

5. Upon considering the respondents’ submissions dated August 25, 2023 and filed on August 28, 2023, wherein the respondents restate their grounds in opposition and further urge that this court, having determined it lacked the jurisdiction to hear the appeal by the applicants under the principles settled in the Geo Chem Middle East v Kenya Bureau of Standards; SC Petition No 47 of 2019, [2020] eKLR, similarly lacks the jurisdiction to entertain the instant application; and the applicants are misleading the court regarding several public policies on education, such as the Sessional Paper No 1 of 2005 on Education Training and Research, and the TIVET Institutions Guidance and Counselling Policy and Operational Guidelines (2011); and

6. Bearing in mind that the legal position as regards this court’s power to review its own decisions is well settled in the cases of Jasbir Singh Rai & 3others v Tarlochan Signh Rai & 4others; SC Petition (Application) No 4 of 2012, [2013] eKLR and Fredrick Otieno Outa; wherein this court held that, as a general rule, the Supreme Court has neither the jurisdiction to sit on appeal over its own decisions, nor the jurisdiction to review its decisions, other than in the manner contemplated by section 21(A) of the Supreme Court Act , that is where:i.The judgment, ruling or order is obtained through fraud, deceit or misrepresentation of facts;ii.The judgment, ruling or order is a nullity by virtue of having been made by a court which was not competent;iii.The court was misled into giving judgment, ruling or order under the belief that the parties have consented thereto; andiv.The judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.

7. We now opine as follows:i.Having considered the pleadings and submissions by the parties herein, we find that the applicants have not demonstrated to our satisfaction that the impugned ruling was obtained by fraud or deceit, is a nullity, was rendered on the basis of a repealed law, or as a result of a deliberately concealed statutory provision, or that the court was misled into giving its ruling under review on a mistaken belief that the parties had consented thereto (as per the legal principles settled in the Fredrick Otieno Outa) case; andii.In our view, the instant application is an appeal disguised as a motion for review, and therefore does not fall within the confines of the parameters prescribed in the foregoing paragraphs.

8. Consequently and for reasons aforesaid, we make the following orders:i.The notice of motion dated July 28, 2023 and filed on August 2, 2023 is hereby dismissed; andii.The applicants shall bear the respondents’ costs.

It is so Ordered.

DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF DECEMBER 2023. …………………………………………………………P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT OF KENYA…………………………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………………………S. C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………………………I. LENAOLAJUSTICE OF THE SUPREME COURT…………………………………………………………W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA