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Court of AppealDismissedApplication dated 31st May 2021

Wambui & another v Mwangi (Civil Appeal (Application) E020 of 2021) [2025] KECA 905 (KLR)

Court of Appeal
23 May 2025
2,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to reopen its earlier stay ruling, confirming reviews of its own decisions are allowed only in rare, exceptional circumstances.

What this practically means

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Executive summary

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This was an application by Monica Jackline Wambui and another seeking to recall, reopen, review and/or vary a ruling of the Court of Appeal (Murgor, Sichale & Kantai, JJ.A.) dated 7th May 2021, which had dismissed their application under rule 5(2)(b) for stay of execution of a High Court judgment (G. Nzioka, J.) of 18th May 2020 concerning maisonette No. 6 Casablanca Villas on L.R. No. 209/5927. The applicants alleged the 1st applicant, the original registered owner, lacked mental capacity due to depression when she sold the property to the respondent in January 2009, and relied on medical documents said to be new evidence, an error on the face of the record, and misapplication of the law. The respondent opposed, contending the application was an appeal disguised as a review, that no new evidence was presented, and that the documents dated from 2009-2012 and were not newly discovered. Applying its settled jurisprudence, the Court reaffirmed that it possesses residual jurisdiction to reopen a concluded matter where the interest of justice demands, but only in exceptional cases and upon a conjunctive three-part threshold: injustice or miscarriage of justice, erosion of public confidence in the administration of justice, and no appeal lying against the decision. The Court found the threshold unmet: the medical documents predated the original application, and recent letters from Asumbi Treatment Centre and Mathari National Teaching & Referral Hospital suggested an attempt to create evidence. The Court held that the 1st applicant, having executed the sale, received the full purchase price and completed all transfer formalities, could not fairly claim incapacity and blame her former advocates. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether this Court has inherent/residual jurisdiction to review and reopen its own ruling dismissing an application for stay of execution
  2. 2.Whether the applicants met the established threshold for exercise of the residual jurisdiction to review
  3. 3.Whether the documents now proffered constitute new and important evidence not available at the time of the original decision
  4. 4.Whether there was an error apparent on the face of the record warranting review

Key legal issues

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01

Threshold for review by the Court of Appeal of its own decision

Holding

Review of the Court's own decision is available only in exceptional cases where the decision has occasioned a miscarriage of justice that has eroded public confidence and no appeal lies against the decision.

Reasoning

The Court adopted its prior jurisprudence, including Kamau James Gitutho, setting a conjunctive three-part threshold: injustice or miscarriage of justice, erosion of public confidence in the administration of justice, and no appeal lying against the decision. The applicants failed to demonstrate any of these; the materials they relied on all predated the original application and were not newly discovered.

p. 4
02

Whether the proffered medical documents constituted new and important evidence

Holding

The medical documents dated 2009-2012 and the 2020-2021 letters were not newly discovered; the latter suggested an attempt to create evidence.

Reasoning

The documents relied upon all dated back to 2009-2012 and were not placed before the Court in the original application dated 20th January 2021, nor could they be described as newly discovered. The letter of 25th May 2021 from Asumbi Treatment Centre and the Mathari Hospital letter suggested an attempt to create evidence, and entertaining them would occasion the very injustice review seeks to guard against.

p. 5
03

Mental incapacity claim cannot be raised to escape an executed transaction

Holding

Having executed the sale agreement, received the full purchase price, and completed all transfer steps, the applicant could not fairly claim mental incapacity and blame her former advocates.

Reasoning

The Court reviewed the earlier ruling's findings: there was a written Agreement for Sale of 13th January 2009 drawn and witnessed by an advocate, consideration of Ksh.13,700,000 paid by cheque, an assignment executed, a share transferred, and notification letters written to utility authorities. In fairness, the applicant could not turn around and claim incapacity after completing the transaction.

p. 5
04

Appeals disguised as reviews will not be entertained

Holding

An application that merely re-argues dissatisfaction with a ruling, rather than meeting the legal threshold for review, is an appeal disguised as a review and will be dismissed.

Reasoning

The respondent argued, and the Court's disposal confirms, that mere dissatisfaction with a ruling does not constitute an error warranting review. The applicants sought to re-litigate the same mental incapacity claim already considered and rejected in the original stay application, without new evidence or identified error, which the Court declined to entertain.

p. 5

Legal principles established

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  • The Court of Appeal has inherent jurisdiction to review its own decisions to prevent injustice or abuse of process, exercisable only where the interest of justice demands.
  • The residual jurisdiction to reopen a concluded decision is exercised with caution and only in exceptional cases, upon demonstration of a three-part threshold.

Court orders

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  1. 1.The application dated 31st May 2021 is dismissed
  2. 2.Costs of the application to the respondent

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court
Jurisdiction invoked
Articles 164(3), 48, 20(3)(a)(b) and 159(2) of the Constitution; section 3 of the Appellate Jurisdiction Act; rules 1(2), 29 and 42 of the Court of Appeal Rules; section 3 of the Judicature Act; the Court's inherent/residual jurisdiction to review its own decisions

Relief refused

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Recall and/or reopening of the ruling dated 7th May 2021

The applicants did not satisfy the threshold for review; the documents proffered were not newly discovered and suggested an attempt to create evidence

p. 5

Review and/or variation of the ruling and stay of execution of the High Court judgment

The established three-part threshold for the Court's residual jurisdiction was not met

p. 5

Costs

The application is dismissed with costs to the respondent.

Quotable passages

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

The application dated 31st May 2021 is totally devoid of merit, and it is hereby dismissed, with costs to the respondent.
p. 5Final orders - dismissal with costs
…the residual jurisdiction of this Court to re- open its own decision is exercised with caution and only in exceptional cases.
p. 4Residual jurisdiction to review
No credible evidence has been placed before us to show that the 1st applicant’s mental capacity was afiected in any way and in those premises, we cannot discern any arguable point in the intended appeal.
p. 4Mental incapacity - evidential burden
In our view, the applicants have not satisfied the conditions for review of the decision of this Court in the ruling dated 5th May 2021.
p. 5Failure to meet review threshold
To entertain these documents would, in our view, result in precisely what an application for review seeks to guard against: to occasion injustice or a miscarriage of justice, against the respondent, and as a result, lead to erosion of public confidence in the administration of justice.
p. 5Guarding against injustice in review applications

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the ruling sought to be reviewed: the application is described throughout as challenging the ruling dated 7th May 2021, but the Court's conclusion refers to 'the ruling dated 5th May 2021'.

minor

The supporting affidavit is described as being in support of 'the application dated 21st January 2021' whereas the application is otherwise described as dated 20th January 2021.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wambui & another v Mwangi (Civil Appeal (Application) E020 of 2021) [2025] KECA 905 (KLR)", Case Analysis (2025). Application dated 31st May 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/905/eng@2025-05-23

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