Kenya Law Weekly Issue 032/22-23

A constructive trust can be imported into a land sale agreement to defeat a registered title.

Headnote: The main issues before the Supreme Court were the applicability of constructive trusts to land sale agreements and to the shareholding of a company. The Supreme Court held that a constructive trust can be imported into a land sale agreement to defeat a registered title. A constructive trust can also be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.

Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) (28 December 2023) (Judgment)
Neutral Citation: [2023] KESC 106
Supreme Court of Kenya
PM Mwilu, DCJ & V-P; SC Wanjala, NS Ndungu, I Lenaola, and W Ouko, SCJJ
December 28, 2023
Reported by John Ribia
Download the Decision

Property Law – trusts – constructive trusts – scope and purpose of constructive trusts - the circumstances in which a constructive trust was created – what were the circumstances in which a constructive trust was created - what was the definition, purpose, scope, and trusts and constructive trusts - Trustee Act, (Cap 167), section 2; Judicature Act (Cap 8), section 3(1);
Land Law – trusts – constructive trusts – applicability of constructive trusts to land sale transactions - whether the doctrine of constructive trust was applicable to land sale transactions - whether a constructive trust could be imported into a land sale agreement to defeat a registered title - whether a constructive trusts could be considered as an overriding interests that had the capacity to limit the rights of a property holder - Constitution of Kenya, 2010, article 40; Trustee Act, (Cap 167), section 2; Judicature Act (Cap 8), section 3(1); of the Land Registration Act (Act No 3 of 2012), sections 25, 26 and 28; Registered Land Act (repealed), section 163
Company Law – trusts – constructive trusts– applicability of constructive trusts in the shareholding of a company - whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration - whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration - Constitution of Kenya, 2010, article 40; Companies Act, (Act No 17 of 2015) section 30, 93, and 104; Companies Act (cap 486) (repealed) section 119
Civil Practice and Procedure – appeals – appeals to the Supreme Court – record of appeal – content and endorsements on a notice of appeal – where a notice of appeal to the Supreme Court was not stamped – where the appellant had not attached documents on the record that would be useful for a finding of facts - whether the failure to have a notice of appeal to the Supreme Court stamped/endorsed by the Court of Appeal was fatal to the appeal - whether appellants before the Supreme Court on question of general public importance were under an obligation to file on the record documents that they filed in the superior courts below including documents that would be useful for a determination of facts - whether the failure of an appellant before the Supreme Court to mark every tenth line of the document was to the appeal. not fatal - Constitution of Kenya, 2010, article 159(2)(d); Supreme Court Act (Act No 7 of 2011) section 15; Supreme Court Rules, 2020 (Act No 7 of 2011 sub leg) rule 40(1)(d)
Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – jurisdiction to determine appeals that raise matters of general public importance – extent of this jurisdiction – where an appellant sought for legal issues other than the issue certified as one of general public importance - whether the Supreme Court had the jurisdiction to determine at its own discretion, other points of law raised in appeal other than the point of law that was certified as a matter of general public importance – Constitution of Kenya, 2010, article 163(4)(b)
Words and Phrases – trust – definition - the right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary) - The Black’s Law Dictionary, 9^th Edition
Words and Phrases – constructive trust – definition - an equitable remedy that a court imposes against one who has obtained property by wrong doing - The Black’s Law Dictionary, 9^th Edition
Words and Phrases – shareholder – definition - an individual who owns or holds a share or shares in a company - Black’s Law Dictionary, 11^th edition at page 1654

Brief Facts:
Sometime in May, 2005, the respondents experienced financial challenges as a result of debts incurred by the 1^st respondent, and secured by the suit land that was registered in the name of the 1^st respondent. The suit property was however threatened with sale by the financier, Standard Chartered Bank Ltd, to recover the monies secured by it.
In an effort to save the suit property the 2^nd and 3^rd respondents, at the time tasked with the running of the 1^st respondent, sought the assistance of the 1^st appellant. The 1^st appellant recommended the restructuring of the 1^st respondent. The respondents acted upon the 1^st appellant’s recommendations. To forestall the looming auction, the 1^st appellant approached Standard Chartered Bank Kenya Ltd with the resolution, the sale agreement and a proposed settlement of the outstanding debt upon registration of title to the suit property in favour of the 8^th appellant or its nominee.
Standard Chartered Bank accepted the proposal on condition that 10% of the purchase price, being Kshs 2,700,000/-, be paid upfront as a non-refundable deposit and a guarantee for payment of the balance thereof be given by a reputable bank. As a consequence, the 10% deposit and a bank guarantee by Giro Commercial Bank were released to Standard Chartered Bank who in turn released the title of the suit property to the Advocates acting for both the 8^th appellant and Giro Commercial Bank. A discharge of the charge in favour of Standard Chartered Bank was subsequently registered. the incorporations of the 4^th to the 7^th appellants were concluded with the shareholding comprising the 1^st appellant, 4^th respondent and the 3^rd appellant each holding 20, 490 and 490 shares, respectively. The directors of the 4^th to the 7^th appellants were the 3^rd respondent and 1^st appellant. Subsequently, the 8^th appellant nominated the 4^th appellant to be registered as proprietor of the suit property. The brick making plant and maize milling factory on the suit property were assigned to the 5^th, 6^th and 7^th appellants.
Thereafter, the 4^th appellant applied for a loan and an overdraft facility of Kshs 50,000,000/- from Giro Commercial Bank to finance the purchase of the suit property and its working capital. The financing was approved on August 11, 2005. A fresh charge over the suit property was registered in favour of Giro Commercial Bank and the balance of the outstanding loan released to offset the loan at Standard Chartered Bank.
At the High Court several suits were filed that sought to stay a declaration by the High Court that 4^th, 5^th, 6^th and 7^th appellants held the suit property in trust for the respondents; and to stay an order of injunction that compelled the transfer of the suit property to the 1^st respondent. The High Court found that the respondents voluntarily made a resolution to sell the suit property and received an agreement for sale, had it executed properly in accordance with the law; there was no coercion or undue influence in the signing of the sale agreement; and that the Memoranda and Articles of Associations of the companies incorporated for the purpose of salvaging the suit property were freely negotiated, agreed and executed. The court further held that, the sale agreement dated August 31, 2005 was valid, lawful and binding and it did convey and confer to the purchaser a valid and good title to the land purchased.
The Court of Appeal found that the 1^st and 3^rd appellants held the shareholding in the 4^th to the 7^th appellant companies in trust for the 1^st respondent or its nominees, and the 4^th appellant helds the suit land in trust for the 1^st respondent. Whereas the 4^th appellant’s title was registered under section 23 of the Registration of Titles Act (repealed), the Court of Appeal found it impeachable. Thus, it nullified the sale agreement and the transfer of the suit property to the 4^th appellant.
Aggrieved the appellants filed the instant case where they contended that the Court of Appeal erred in holding that the agreement for sale between the 8^th appellant and the 1^st respondent did not represent the will of the parties and that the same had been procured through undue influence and unconscionable bargains. It was their case that the finding was contrary to the facts pleaded by the respondents that the agreement was a product of negotiations.
The 3^rd and 4^th respondents’ filed a preliminary objection premised on the grounds that the notice of appeal; was not in compliance with rule 10 of the Court of Appeal Rules as the same was not signed and endorsed with the stamp of the Deputy Registrar; that the paragraphs of the notice of appeal were not properly numbered, and that the record of appeal was not complete as various documents that had been filed in the Supreme Court below had not been filed before the Supreme Court. The sought for the notice of appeal to be struck out.
The respondents also urged the court that a constructive trust overrides the registered title where a party had exerted undue influence when obtaining and retaining the property transferred to him, as was the circumstances in the instant case.

Issues

Whether the failure to have a notice of appeal to the Supreme Court stamped/endorsed by the Court of Appeal was fatal to the appeal.
Whether appellants before the Supreme Court on question of general public importance were under an obligation to file on the record documents that they filed in the superior courts below including documents that would be useful for a determination of facts.
Whether the failure of an appellant before the Supreme Court to mark every tenth line of the document was to the appeal. not fatal.
Whether the Supreme Court had the jurisdiction to determine at its own discretion, other points of law raised in appeal other than the point of law that was certified as a matter of general public importance.
What were the circumstances in which a constructive trust was created?
What was the definition, purpose, scope, and trusts and constructive trusts?
Whether the doctrine of constructive trust was applicable to land sale transactions.
What was the legal framework governing constructive trusts in Kenya?
What were the manners in which a constructive trust may be created?
Whether a constructive trust could be imported into a land sale agreement to defeat a registered title.
Whether a constructive trusts could be considered as an overriding interests that had the capacity to limit the rights of a property holder.
Whether a constructive trust can be imported into a shareholding of a company as to disentitle a registered holder of shares in a company obtained for valuable consideration.

Held:

The notice of appeal was properly filed before the Court of Appeal. Whereas the heading of the notice of appeal indicated that it was filed in regard to an application for grant of certification and leave to appeal to the Supreme Court, its contents specified the intent to appeal against the decision of the Court of Appeal rendered on April 4, 2019. The parties having engaged in the certification and leave to appeal proceedings both at the Court of Appeal and before the Supreme Court, there was little doubt left as to the appellants’ intention to appeal against the judgment of the Court of Appeal.
It was not for the Supreme Court to entangle itself in the filing and administrative processes of the Court of Appeal. The failure to have an appeal stamped or endorsed by the Court of Appeal was not fatal, as the notice of appeal was duly lodged in the Court of Appeal.
The instant case was a matter for determination of specific framed questions of general public importance. The documents stated as missing from the record would be useful for the interrogation of findings of facts which fell outside the purview of the Supreme Court.
The failure by the appellants to mark every tenth line of the document, without condoning the same, was not fatal. Article 159 (2) (d) of the Constitution obliged the Supreme Court to administer justice without undue regard to procedural technicalities. The 3^rd and 4^th respondents’ preliminary objection had no merit.
An appeal was granted in specific terms by the Constitution or statute. An appeal thus typically lay to a higher court and entailed a reconsideration of a decision by the higher court with a view to reversing it either in part or in toto. The appellate jurisdiction of the Supreme Court derived from article 163(4) of the Constitution. That involved an appeal as of right or an appeal on certification. The court could not exercise both jurisdictions concurrently. The litigant chose the best path upon which the matter was considered within the established threshold. Unlike an appeal as of right where the court exercised its appellate jurisdiction on the application and interpretation of the Constitution by the superior courts below, the jurisdiction on certification was narrower as the court was only called upon to express its position on matters that transcend the litigants before Court among other parameters set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013]eKLR without necessarily sitting on appeal between the parties before it. The Supreme Court was not just another appellate layer of courts to offer remedy to parties dissatisfied with the decisions of the Court of Appeal.
It would always be a matter for the exercise of discretion whether to allow a point in no way connected with the certified point of law to be argued on the appeal, and it was not to be assumed that an appellant could as a matter of right raise any such point. None of the issues raised to challenge the jurisdiction of the court sufficed.
Trustee Act defined a “trust” and “trustee” as extending to implied and constructive trusts. A constructive trust was an equitable instrument which served the purpose of preventing unjust enrichment. Trusts were created either expressly, where the trust property, its purpose and the beneficiaries were clearly stated, or established by the operation of the law. Like in the instant case, where it was not expressly stated, the trust may be established by operation of the law.
A constructive trust was a right traceable from the doctrines of equity. It arose in connection with the legal title to property when a party conducted himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust would thus automatically arise where a person who was already a trustee took advantage of his position for his own benefit.
section 3(1) of the Judicature Act, the doctrines of equity were applicable in Kenya and formed part of Kenyan laws. Common law, doctrines of equity and statutes of general application applied in so far as the circumstances of Kenya and its inhabitants permitted and subject to such qualifications as those circumstances rendered necessary.
section 163 of the Registered Land Act (repealed) courts imported the doctrines of implied, resulting and constructive trust as known in English law, into section 28 of the Registered Land Act (repealed). The doctrine of constructive trust was applicable to land sale transactions.
Every person either individually or in association with others, had the right to acquire and own property of any description, and in any part of Kenya. This right to property was however not absolute. Under article 40(3) of the Constitution, the State may deprive a person of property through a process of acquisition of land for a public purpose or in public interest in accordance with the Constitution. Further, under article 40(6) the rights to property did not extend to any property that had been found to have been unlawfully acquired.
While article 40 had an internal limitation on the right to property, the general limitation of rights provision at article 24 of the Constitution provided that any limitation on a right shall be by law, and only to the extent that the limitation was reasonable and justifiable.
While sections 25, 26 and 28 of the Land Registration Act recognized that the rights of a registered proprietor of land were absolute and indefeasible, those were only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests included trusts. In the absence of any limitation as to the trusts, that included constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property was provided under law, and included a constructive trust. Section 28 of the Land Registration Act provided that the registration was subject to overriding interests. One of the overriding interests was trust, which included constructive trust.
Constructive could arise in various circumstances, including in land sale agreements. Trust was an equitable remedy which was an intervention against unconscionable conduct. Where the circumstances of the case were such that it would demand that equity treated the legal owner as a trustee, the law would impose a trust. It was imposed by law whenever justice and good conscience required it. A constructive trust can be imported into a land sale agreement to defeat a registered title.
Companies Act made provision to govern all types of companies. Section 20 provided for the articles of association as the Constitution of the company. Pursuant to section 26, for existing companies before the commencement of the Act, such as the companies in the instant suit, the memorandum of association was treated as provisions of the articles. Companies therefore had a free hand in managing their own affairs through those constitutive documents. Under section 30(1), the company’s constitution bound the company and its members to the same extent as if the company and its members had covenanted, agreed with each other to observe the constitution. A court could not interfere with the internal affairs of a company except for limited circumstances.
Section 93 of the Companies Act required the company to keep a register of its members including information relating to beneficial owners of the company, if any. Section 104(1) however provided that a company shall not accept, and shall not enter in its register of members, notice of any trust, expressed, implied or constructive. Section 104(1) was similarly contained in section 119 of the Companies Act (cap 486)(repealed) which provided that no notice of any trust, expressed, implied or constructive, was to be entered on the register, or be receivable by the registrar.
Section 105 of the Companies Act stated that until the contrary was proved, the register of the members of a company was evidence of the matters required or authorised to be included in it. The Companies Act expressly provided that there could be no entry of a trust on the company register.
Whereas section 104 of the Companies Act proscribed the entry of trusts on the register of members, the intention of the provision was not to bar any trust arrangements, including constructive trusts. There was no bar to the holding of share(s) upon a trust.
There was unconscionable or inequitable behaviour, trust was imposed as the most appropriate remedy. A constructive trust can be imported into a shareholding of a company. Section 104 of the Companies Act did not outlaw or bar importation of trust into the shareholding of a company. A shareholding signified proprietorship in a company to the extent of the share(s) held. Company shares constituted property under article 260 of the Constitution and therefore, where it was found that there was a wrong doing, then a constructive trust may be inferred. In the instant case, a constructive trust had clearly been created.
The focus of the Supreme Court was on the recourse, rather than the applicability of the doctrine of trust. The court was not persuaded to re-open the merits of the Court of Appeal decision in concluding the applicability of the trust. Litigation had to come to an end. The Court of Appeal, having satisfied itself of the facts, came to one conclusion and made its orders. A decision arising out of adversarial litigation was not bound to be satisfactory to both parties and undoubtedly, different courts would come to different conclusions on the same facts. Re-opening the facts was not appropriate under circumstances, and would be going beyond the Supreme Court’s constitutional remit.
Courts were an integral part of the Kenyan judicial system, they are entrusted with the responsibility of adjudicating disputes and administering justice, in accordance with the Constitution’s ethos, values and principles. In carrying out their judicial duties, they were obligated to adhere to the principles outlined under article 159 of the Constitution. That guarantees that the objectives and tenets of the Constitution were upheld.
“A trend towards promotion of legal certainty, safeguarding of property rights, and equitable access to justice undoubtedly emphasizes the necessity for a revision of the legislation governing the registration of trusts (including constructive) in relation to shares held in a company. These changes would be indicative of a growing recognition of the importance of constructive trust as a means of addressing unjust enrichment and ensuring equitable outcomes in disputes. Legislation that is in line with international developments and prevailing standards can enhance the strength and adaptability of the legal system, enabling it to more effectively tackle present day issues pertaining to shareholding, property rights and fair redress. It provides an opportunity for courts to shape the legal landscape concerning providing clarity particularly on enforcing remedies when breaches or unfairness occur.”

Appeal dismissed, each party was to bear its own costs.

Kenya Law Case Updates Issue 032/23-24
Case Summaries


CIVIL PRACTICE PROCEDURE	Enforcement of a foreign judgment was an issue of public interest warranting an appeal to the Supreme Court Headnote:The main issues before the Supreme Court were whether the enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court, and whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court. The Supreme Court held that the question of recognition and enforcement of foreign judgments in Kenya was an issue that had transcended through the superior courts below. The applicants had an arguable appeal, the merit of which could only be interrogated at the hearing. On the facility agreement, the court held that the facility agreement entered into by the parties were private interests that did not have a bearing on public interest. Dari Limited & 5 others v East African Development Bank (Petition (Application) E012 of 2023 & Application E017 of 2023 (Consolidated)) [2023] KESC 90 (KLR) (6 October 2023) (Ruling) Neutral Citation: [2023] KESC 90 Supreme Court of Kenya PM Mwilu, DCJ and V-P; MK Ibrahim, SC Wanjala, NS Ndungu, and W Ouko, SCJJ October 6, 2023 Reported by John Ribia Download the Decision *Civil Practice and Procedure* – appeals – appeals to the Supreme Court on matters of general public importance - whether enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court - whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court – Constitution of Kenya, 2010 article 163(4)(b) Brief Facts The Supreme Court in the instant ruling was determining over three applications. The applicants filed the first application in which they sought conservatory orders staying the execution of a judgment of the Court Appeal which condemned the applicant to pay USD 15,162,320.95 to the respondent for default in repayment of a loan arising from a facility agreement. The other two applications were by the respondent which sought to strike out the applicant’s supplementary affidavits. The distinguishable difference between the two applications was that one application sought to strike out the affidavits on grounds that they presented privileged documents which had been improperly and/or unlawfully obtained. The second application contended that the documents presented in the affidavits did not form part of the record of the High Court and Court of Appeal and as such ought not to be considered and or interrogated for purposes of determination of the petition as they did not form part of the record before the Supreme Court. Issues: Whether the enforcement of a foreign judgment was a matter of public interest warranting an appeal to the Supreme Court. Whether a dispute arising out of a facility agreement between a bank and its client was a matter of public interest warranting an appeal to the Supreme Court. Read More.. Held: Empowered by rule 40(3) of the Supreme Court Rules, the Supreme Court may, on application of any party, direct certain documents to be excluded from the record, and an application for such exclusion may be made orally. The annexures adduced by the applicants in the supplementary affidavit were not produced in the superior courts below. It was a party’s duty to satisfy all the elements under the provisions of section 20 of the Supreme Court Act that guided the Court in admitting additional evidence. Under rule 26, a party that sought to adduce additional evidence should make a formal application to the Court. The supplementary affidavits sought to rebut averments made by the respondent. However, that did not extend to allowing the applicants to introduce additional evidence through the backdoor. Proper procedures as prescribed by the law must be followed. The applicants failed to do so. The supplementary affidavits were struck out. Under section 21 (2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, the Supreme Court had inherent power to make any ancillary or interlocutory orders that it deemed fit to make as it may be necessary for the ends of justice or prevent abuse of the process of the court. To consider whether to entertain the interlocutory relief sought, an applicant must demonstrate that the appeal was arguable and not frivolous; that if stay was not granted the appeal will be rendered nugatory; and that it was in the public interest that the order of stay was granted. The proceedings pending before the High Court did not directly arise in the instant appeal. The impugned judgment by the Court of Appeal made no reference to the instant proceedings. The stay over these proceedings emanated from the Court of Appeal ruling in Civil Appeal No 202 of 2020 consolidated with Nos 203, 204, 205 & 206 of 2020 that was necessitated by the ruling of the High Court that declined to extend that stay orders that had been issued by the Court of Appeal. The applicants had not adduced any evidence of the existence of any appeal on these issues before the Court of Appeal. With the judgment having been made by the Court of Appeal on the main issue on recognition and enforcement of the foreign judgment, the pending proceedings before the High Court were beyond the Supreme Court’s remit. Questions of the arguability of an appeal did not call for the interrogation of the merits of the appeal and the Court, at the preliminary stage, must not make any definitive findings of either fact or law. An arguable appeal was not one which necessarily must succeed but one which ought to be argued fully before the court. The applicants hinged their appeal on the question of recognition and enforcement of foreign judgments in Kenya that violated article 50 as read with article 25 of the Constitution. That was an issue that had transcended through the superior courts below as the applicants pursued their quest to set aside the adoption of a foreign judgment as a judgment of the High Court of Kenya. The applicants had an arguable appeal, the merit of which could only be interrogated at the hearing. In determining whether the subject matter to be stayed was reversible, a court had to balance the interest of the applicant vis-à-vis that of the respondent who was seeking to enjoy the fruits of its judgment. The balance of probability favoured the respondent. Though the respondent held securities being charges over the suit properties which were located in a suburb area in Nairobi in their favour; as well as the security of Kshs. 50,000,000/- deposited in the joint names of the parties’ advocates in an interest earning account; the amount owed to the respondent was colossal with a decretal sum of USD 15,162,320.95 that continued accruing interest. The appeal before the court was founded on the enforcement and recognition of a foreign judgment as against the Supreme Court’s judgment in Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR) (31 March 2023) (Judgment) The money decree issued was a result of the findings on the primary dispute. The enforceability and validity of the facility agreement dated April 10, 2015 as between the different parties was a distinct issue whose determination accrued from a different course of action. The parties were, in any event, still engaged before the High Court. The respondent remained a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim. The applicants’ apprehension as to the diplomatic immunity afforded to the respondent did not suffice. The applicants had not demonstrated the extent to which, if at all, the alleged immunity accrues and applied to the instant case. The court could not be called upon to make a determination on immunity or otherwise of the respondent, as the issue was not on appeal before the Supreme Court, having not been subject of judicial determination in the superior courts below. The dispute between the parties arose out of the facility agreement entered into by the parties on April 10, 2015 and the terms thereunder. They were at best private interests that were at stake that did not have a bearing on public interest as the settings were specific to the parties in the dispute. Enforcement of a foreign judgment was not in and of itself an affirmation of public interest until it was interrogated further as may be applicable on a case to case basis. Prima facie, the applicants’ dispute was a matter of “private international law” or “conflict of laws”. It was premature for the Supreme Court to wade into the merits of the international law aspect of the dispute as to satisfy the public interest threshold to warrant our intervention. That position extended to the applicability of article 50 of the Constitution on the right to fair hearing in view of the purely private and/or commercial engagement between the parties. The applicants had not demonstrated that they could surmount the public interest criteria for exercise of our discretion in their favour. Application partly allowed. *Orders:-* The notice of motion application dated April 25, 2023 and filed on April 26, 2023 was dismissed. The notice of motion application (Petition (Application) No E012 of 2023) dated June 23, 2023 and filed on June 27, 2023 was allowed. The notice of motion application (Application No E017 of 2023) dated June 23, 2023 was allowed. Costs of the application were to abide the outcome of the appeal.
JURISDICTION	Jurisdiction of the High Court to review its decision where there was a mistake in its judgment Headnote: The application sought the review of the mistakes/errors apparent on the face of the judgment by the High Court. The court found that there was an error or mistake which was apparent. Further, the trial court erred in finding that persons with disability ranked in priority over youths and other marginalized groups. In the circumstances, the court held that it was entitled to recall its decision for purposes of correcting the error or slip to give effect to the manifest intention of the decision. Vincent v Langat & 5 others; Omollo & 15 others (Interested Parties) (Election Petition Appeal E001 of 2023) [2023] KEHC 22471 (KLR) (20 September 2023) (Ruling) Neutral citation: [2023] KEHC 22471 (KLR) High Court at Kericho JK Sergon, J September 20, 2023 Reported by Kakai Toili Download the Decision *Jurisdiction* – jurisdiction of the High Court – jurisdiction to review its decisions – scope - whether the High Court could review its decision where there was a mistake in its judgment where it dismissed an appeal but disagreed with the trial court. Brief facts The application sought among other orders; that the mistakes/errors apparent on the face of the judgment delivered and issued on May 24, 2023 be corrected by way of review. The applicant submitted that from the judgment of the court delivered on May 24, 2023 that there were patent mistakes or errors of law or otherwise apparent on the face of record which ought to be corrected by way of review with the end result that the appeal succeeds. The applicant pointed out that the 4th issue framed by the court for determination in the judgment was whether persons with disability were nominated or otherwise appointed in priority over youths and other marginalized groups. The applicant further pointed out that in the judgment, the court came to the conclusion that persons living with disabilities and youths were in the same category and therefore none of them ranked higher than the other and therefore it was upon the political party to identify the special interest in the broad sense and nominate the person falling within the special interest group to represent every person in that group. The applicant stated that the court having come to that conclusion should have allowed the appeal in terms of grounds 10, 11 and 12 of the memorandum of appeal. On May 24, 2023, the court delivered its judgment whereof it dismissed the appeal and upheld the decision of the trial court. Issue: Whether the High Court could review its decision where there was a mistake in its judgment where it dismissed an appeal but disagreed with the trial court.Read More... Held: After considering the arguments put forward, the court came to the conclusion that person with disability and the youths were in the same category and none ranked higher than the other and therefore it was upon the political party to identify the special interest in that broad sense and to nominate a person or persons falling within the special interest group to represent every person in that group. The trial court stated in its judgment delivered on February 10, 2023 that persons with disability were nominated or otherwise appointed in priority over youths and or other marginalized groups. There was an error or mistake which was apparent. The trial court erred in finding that persons with disability ranked in priority over youths and other marginalized group. In the circumstances, the court was entitled to recall its decision for purposes of correcting the error or slip to give effect to the manifest intention of the decision. The court made an accidental slip which could be corrected by review. The finding that persons with disability and the youths were in the same category and none ranked in priority over the other should have led to the automatic allowance of the appeal in terms of grounds 10, 11 and 12 of the memorandum of appeal. Those grounds could not be treated as peripheral grounds. In the circumstances, the judgment should be corrected and rectified by way of review. The court’s finding that it did not matter whether the appellant was heard or not before the decision was made did not merit to be treated as a ground for review. The court made a conscious decision before coming to the conclusion. The ground was basically a ground for appeal which could not be entertained as a ground for review. Application allowed. Orders The court’s judgment delivered on May 24, 2023 dismissing the appeal was set aside and was substituted with an order allowing the appeal. The judgment of the trial court delivered on February 10, 2023 vide Kericho Chief Magistrate Court, Election Petition No E002 of 2022 was set aside and was substituted with an order dismissing the petition dated September 16, 2022. Each party to bear its own costs.

Kenya Law Weekly Issue 032/22-23

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