27. The Complainants maintain that an Application for Review to the Kenyan Court of Appeal is a discretionary remedy; which remedy under broadly accepted principles among international tribunals is a discretionary remedy which need not be exhausted. They note that the above notwithstanding, the Kenyan Court of Appeal has itself declared that the remedy of an Application for Review is not an accessible remedy. They cite the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, wherein the Kenyan Court of Appeal stated that it had no jurisdiction to re-open, re-hear and then recall its earlier decision and substitute it with another.5 They further cite Mahinda v Kenya Power Lighting (earlier relied on by the Respondent State) wherein the Kenyan Court of Appeal affirmed that its power to re-open an appeal is highly limited and only reserved for exceptional circumstances. They maintain that the present case is not an exceptional one for which an application for review would be necessary. 28. Regarding the argument of the Respondent State that the Victim could have instituted a fundamental rights application under section 84 of the Kenyan Constitution, the Complainants submit that a fundamental rights application is an exceptional or extraordinary remedy that the Victim was not required to pursue in order to satisfy the requirement of Article 56(5). 29. The Complainant also submits that the Victim did not have to submit a complaint to the Kenyan Human Rights Commission or to the Public Complaints Standing Committee, as asserted by the State Party. They argue that these bodies are not judicial bodies and are thus not effective remedies which must be exhausted. They cite Cudjoe v Ghana6 wherein (2007) Eklr, per Bosire JA, cited in page 5 of Complainant’s Submission on Admissibility. 6 Communication 221/98 (1999) 5 7