The Slip Rule: Assessing the Supreme Court jurisdiction to review its own decision in Kenya


 Youngreen Peter Mudeyi*

The general rule is that once a court has duly pronounced a final order, it becomes functus officio (of no further authority or legal effect) and has no power to alter the order.[i] Debates arise on abandoning precedent adherence, but great advocacy is that it is a general rule and not an exception because reopening past decisions burdens judges, hindering a secure legal foundation.[ii] The slip rule provides that courts have the authority to rectify evident errors on the surface of a judgment, ruling, or order, provided these errors are clear and the correction does not grant the court jurisdiction to act as an appellate body or substantially modify its own decision.[iii] The Constitution of Kenya, 2010 establishes that all other courts other than the Supreme Court itself are bound by the decision of the Supreme Court of Kenya.[iv] Article 163(7) of the Constitution of Kenya, 2010 can only be invoked by a litigant who is seeking to convince the Court to depart from its decision on grounds such as that the decision was made per incuriam (through lack of due regard to the law or facts) or that the decision is no longer good law.[v]

The Supreme Court's jurisdiction to depart from its own decision or to sit and review its own decision is sui generis (unique) as the principle is that the decision of the Supreme Court is final. This unique jurisdiction helps in developing rich jurisprudence that respects Kenya's history and traditions and facilitates its social, economic and political growth since the Supreme Court is the final judicial authority.[vi] The slip rule states that the Court has the authority, either at its own initiative or upon application by any party with prior notification to others involved, to rectify any oversight, clerical mistake, or other evident error in the judgment, ruling, or order. Such rectification will be considered an integral part of the court's decision.[vii] The Nigerian Supreme Court in Citec International Estate Ltd v Francis stated that the general principle is to the effect that it cannot sit on appeal over its own judgment save in circumstances permitted by the slip rule.[viii] The main issue in the case was whether or not the court could set aside the order it had given granting the parties leave to file an appeal out of time.[ix] The Court went on and stated that it could only do so under appropriate circumstances such as if the order would be prejudicial to the administration of justice.[x]

Despite the Supreme Court possessing inherent power to set aside its own judgment in appropriate cases, this does not confer upon it appellate jurisdiction intending to afford the losing parties another opportunity to re-argue their appeal.[xi] Although, where a judgment by a court is adjudged a nullity, a party affected is entitled to have it set aside ex debitio justitiae (from or as a debt of justice). In other words, it is crucial to note that the rule does not bestow upon a court any jurisdiction or powers to sit on appeal to extensively review its judgment as to substantially alter it.[xii] The question is, can there be a derogation from the general rule? If a derogation is allowed, then what are the circumstances?

The legal position as regards the Supreme Court's power to review its own decision was settled in the Fredrick Otieno Outa Case wherein the court stated that as a general principle, the Supreme Court lacks the authority to hear appeals on its own rulings or to reassess its decisions, except as outlined in Section 21(4) of the Supreme Court Act.[xiii] However, it is acknowledged that, utilising its inherent powers, the Court may, under exceptional circumstances and either upon request by a party or at its own initiative, reconsider any of its judgments, rulings, or orders to ensure justice is served.[xiv]

It is important to note that this special jurisdiction does not apply to all instances as the Supreme Court Act limits it to four circumstances.[xv] First, the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts,[xvi] second, that the judgment is a nullity by virtue of being made by a court which was not competent,[xvii] third, that in situations where the court has been deceived, leading to a decision, verdict, or directive based on the false assumption that the involved parties have given their consent[xviii] and finally, in cases where a decision, ruling, or order is issued based on a law that has since been repealed, or due to an intentional hiding of a statutory provision.[xix] If a matter fails to disclose any of the four issues, the application will be dismissed as it is considered a disguised appeal which seeks to reopen matters already determined with finality by the Court.[xx]

The constitution provides that the Supreme Court shall make rules for the exercise of its jurisdiction.[xxi] The Rules established in 2020 provide that Supreme Court may also review any of its decisions in any circumstance which the Court considers meritorious, exceptional, and in the public interest, either on its own motion, or upon application by a party.[xxii] The court in the William Musembi case stated that for one to prevail in a request for error correction, the application must be submitted within fourteen days from the delivery of the judgment, ruling, or order, whether initiated by the Court or prompted by a party.[xxiii] Additionally, the applicant or the Court must provide notice to other parties before pursuing the correction.[xxiv] The error subject to correction must pertain to an oversight, clerical miscalculation, or another identifiable error, and it must be evident in the judgment, ruling, or order in question.[xxv] The slip rule is thus not meant to afford a losing party an opportunity to re-ligate or re-open a matter merely because such a party is unhappy with the outcome of the case.[xxvi]

A good example is the Rai v Rai case where the Supreme Court reviewed the decision it had rendered in the Macharia case on the constitutionality of section 14 of the Supreme Court Act but it distinguished its previous decision by declaring the Section unconstitutional.[xxvii] This rule is essential as it ensures that the Supreme Court is not the end point of justice but a means towards reaching the end which is administration of justice.

*The author is a second-year student at Kabarak University School of Law.

[i] Daniel v President of the Republic of South Africa and another (CCT 34/13) [(2013]) ZACC 24; 2013 (11) BCLR 1241 (CC) (27 June 2013) para 5.

[ii] Benjamin Cardozo, The Nature of the Judicial Process, Yale University Press, New Haven, 1921, 149.

[iii]William Musembi & 13 others (Suing on their own behalf and on behalf of 15 residents on Upendo City Cotton village at South C Ward, Nairobi) v Moi Educational Centre Co. Ltd and 3 others, Application E019 of 2021 [(2022], Ruling of the Supreme Court of Kenya, 19 May 2022, [eKLR], para 9.

[iv] Constitution of Kenya (2010), Article 163(7).

[v] Fredrick Otieno Outa v Jared Odoyo Okello and 3 others, Petition 6 of 2014, Ruling of the Supreme Court of Kenya,24 February 2017, [eKLR], para 83.

[vi] Supreme Court Act (Chapter 9B), Section 3(c).

[vii] Supreme Court Act (Chapter 9B), Section 21(4).

[viii] Citec International Estate Ltd. and 4 others v Josiah Oluwole Francis and 5 others (2023) 4, CLRN, 24, <Available at https://assets.ctfassets.net/xh9wlpgzblok/3frLah5QAzAcmWL8LNnY9K/0e3f628ec7ff7d77b19b9e7abff438de/CLRN_APRIL_2023_ISSUES_FULL.pdf>on 27 February 2023

[ix] Citec International Estate Ltd. and 4 others v Josiah Oluwole Francis and 5 others, 25.

[x] Citec International Estate Ltd. and 4 others v Josiah Oluwole Francis and 5 others, 25.

[xi] Fredrick Otieno Outa v Jared Odoyo Okello and 3 others, para 63 citing Citec International Estate Ltd. and others v Francis and others (2014) LPELR-22314 (SC).

[xii] Fredrick Otieno Outa v Jared Odoyo Okello and 3 others, para 85.

[xiii] Fredrick Otieno Outa v Jared Odoyo Okello and 3 others, para 90.

[xiv] Supreme Court Act (Chapter 9B), Section 21A.

[xv] Supreme Court Act (Chapter 9B), Section 21A.

[xvi] Supreme Court Act (Chapter 9B), Section 21A(a).

[xvii] Supreme Court Act (Chapter 9B), Section 21A(b).

[xviii] Supreme Court Act (Chapter 9B), Section 21A(c).

[xix] Supreme Court Act (Chapter 9B), Section 21A(d).

[xx] Kenya Bureau of Standards v Geo Chem Middle East, Application No. 33 of 2020, Ruling of the Supreme Court, 17 March 2021, [eKLR], para 25.

[xxi] Constitution of Kenya (2010), Article 163(8).

[xxii] Supreme Court Rules (No 7 of 2011), Rule 28(5).

[xxiii] William Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others, para 11.

[xxiv] William Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others, para 11.

[xxv] William Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others, para 11.

[xxvi]Fredrick Otieno Outa v Jared Odoyo Okello and 3 others, para 95.

[xxvii] Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, Petition No. 4 of 2012, Ruling of the Supreme Court, 20 August 2013, [eKLR], para 128.

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