Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 7th June 2024 (arising from Civil Appeal relating to Meru Succession Cause No. 677 of 2014)

Gatobu & 2 others v Kiara & another (Civil Appeal (Application) E006 of 2022) [2025] KECA 575 (KLR)

Court of Appeal of Kenya
28 March 2025
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to reopen its decision in a family land succession dispute, confirming that review is only for exceptional injustice.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Nyeri (Lesiit, Ali-Aroni and Odunga JJ.A) disposes of a Notice of Motion dated 7th June 2024 by which Patrick Gatobu, Francis Karimi Kiara and Nicholas Muriungu Kiara sought review of the Court's judgment of 17th May 2024 dismissing their appeal against Ong'injo J's ruling of 15th October 2020 in Meru Succession Cause No. 677 of 2014. In the substantive appeal, the court had affirmed that the deceased, M'Ikiara M'Ngutari, died intestate; that Geofirey Mugambi Kiara and Jane Gacheri Kiara were dependants and beneficiaries; that the deceased's lifetime allocation of building and cultivation spots was temporary and not distribution; and that under section 38 of the Law of Succession Act each child takes an equal share. The present motion, though its body did not expressly seek review, sought in substance a reaffirmation of the deceased's lifetime distribution and valuation and compensation for the applicants' developments. The court restated the settled principles governing the Court of Appeal's residual jurisdiction to reopen decided matters - drawn from Ndeti v Matei, Benjoh Amalgamated, Ndubi v Standard, Mohammed Jawayd Iqbal, Synergy Industrial Credit, Patrick Kitamonge Leparleen and Taylor v Lawrence - emphasizing that the jurisdiction is exceptional, exercised with circumspection, and requires probable real injustice without an effective alternative remedy. The applicants offered only bare averments that material evidence had been overlooked, and valuation and apportionment issues can be resolved at distribution. The application was accordingly dismissed with costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal should exercise its residual jurisdiction to review/reopen its judgment delivered on 17th May 2024 dismissing the appellants' appeal
  2. 2.Whether the alleged failure to factor in material evidence establishes a probability of significant, real or substantial injustice without an effective alternative remedy

Key legal issues

#
01

Scope of the Court of Appeal's residual jurisdiction to review its own judgments

Holding

The jurisdiction exists despite not being statutorily conferred, but is exercisable only exceptionally, in cases of fraud, bias or other injustice occasioning real injustice, where there is no effective alternative remedy

Reasoning

Drawing on Ndeti v Matei, Benjoh Amalgamated, Ndubi v Standard, Mohammed Jawayd Iqbal, Synergy Industrial Credit, Patrick Kitamonge Leparleen and Taylor v Lawrence, the court synthesized six principles: review is not provided for in the Rules; the residual jurisdiction exists; it is exceptional and limited; it lies for fraud, bias or injustice to correct manifest wrongs; it is available even after the court is deemed functus; and it requires proof of probable real injustice without an alternative remedy.

p. 6
02

Whether the applicants' complaint of overlooked material evidence satisfied the review threshold

Holding

No. The applicants failed to demonstrate that consideration of the alleged material would probably have led to a different determination, and alternative remedies exist at the distribution stage

Reasoning

The court held that an applicant alleging omitted material must go beyond bare averment and show the decision would probably have differed. Valuation and allocation of specific portions to beneficiaries are matters properly addressed during distribution of the estate, giving the applicants an effective alternative remedy, so the review jurisdiction could not be invoked.

p. 6

Legal principles established

#
  • The Court of Appeal's residual jurisdiction to review its own decisions is exercised only in exceptional and limited circumstances where finality would work real injustice, with no effective alternative remedy
  • An applicant for review based on overlooked material must demonstrate that its consideration would probably have produced a different result; mere disagreement with findings is not review but an impermissible appeal against a concluded judgment

Court orders

#
  1. 1.The Notice of Motion dated 7th June 2024 is dismissed with costs
  2. 2.It is so ordered

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Meru
Succession Cause No. 677 of 2014
Jurisdiction invoked
Residual (inherent) jurisdiction of the Court of Appeal to review/reopen its own decided matters; not statutorily conferred

Relief refused

#

Review/reopening of the judgment of 17th May 2024 and reaffirmation of the deceased's lifetime distribution, including valuation of developments and stay/inhibition orders

The applicants made only bare averments and did not show that consideration of the alleged material would probably have led to a different determination; moreover, valuation and apportionment issues can be dealt with at distribution of the estate, so an alternative remedy exists

p. 6

Costs

The application dismissed with costs to the respondents

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

to justify reopening of the matter, there must be a probability of a significant, real or substantial injustice or miscarriage of justice without an efiective alternative remedy.
p. 6Test for invoking the residual review jurisdiction
We find no merit in the Notice of Motion dated 7th June 2024 which we hereby dismiss with costs.
p. 6Final orders - dismissal of the application
By doing so, this Court would, in efiect be sitting on an appeal against the said judgement, and that is not the purpose for which the very limited jurisdiction of review is exercised.
p. 6Review is not a second appeal
Ordinarily, the norm is that a judgment pronounced by the Court of Appeal is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
p. 3Finality principle

Issues in the judgment

#
minor

The judgment text contains repeated typographical OCR errors ('efiective', 'efiort', 'difierent', 'fiatter'); quotes preserved character-for-character as they appear

minor

The reference to 'Meru High Court Civil Suit No. 127 of 20907' appears internally inconsistent as a case number

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Gatobu & 2 others v Kiara & another (Civil Appeal (Application) E006 of 2022) [2025] KECA 575 (KLR)", Case Analysis (2025). Notice of Motion dated 7th June 2024 (arising from Civil Appeal relating to Meru Succession Cause No. 677 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/575/eng@2025-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.