Evangeline Kanyua Mwiandi & 2 others v Gilbert Kathenya Mukungi

The Court examined rule 57, which requires a dissatisfied party to apply informally to the single Judge at the time of the decision or in writing to the Registrar within seven days, and prohibits additional evidence at the hearing by the full Court. The applicant instead filed a distinct motion seeking stay, setting aside or review. The Court held it could not grant relief outside the clear scheme of the rules, since the rules are clear on the steps to be taken where one is aggrieved by a decision of a single Judge.

The Court traced the position from the pre-2010 era when the Court of Appeal, as the apex court, did not entertain applications for review, through the new constitutional dispensation. Even now such applications are rare, and the Court still lacks rules providing for review or setting aside of its own decisions. The applicable standard, drawn from Ndubi v Standard Limited, confines review to exceptional circumstances where the usual principle of finality could work injustice, which the applicant did not establish.

The single Judge had found that the grant annexed to the substitution application related to Gideon Mwiandi Itangi rather than to the deceased appellant Evangeline Kanyua Mwiandi, and that the application was brought after inordinate delay. The applicant contended the grant was the rightful one as it concerned the original defendant's estate. On reviewing the ruling, the full Court could discern no error on the face of the record and found the application before it devoid of merit.