Kibagi v Njogu (Civil Appeal (Application) 95 of 2019) [2025] KECA 1232 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a review application because it cited the wrong legal rule, showing correct procedure is essential.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court's jurisdiction was properly invoked for an application for review of its own judgment
- 2.Whether the application was otherwise defective (misleading title, failure to attach the impugned judgment, failure to identify the bench)
- 3.Whether the application should be struck out
Key legal issues
#Invocation of the Court's jurisdiction
The application was fatally defective because it invoked Order 45 of the Civil Procedure Rules and Article 159 of the Constitution instead of Rule 1(2) of the Court of Appeal Rules, which alone governs review of the Court's own judgments.
The Court relies on properly cited legal provisions to understand the basis of an application and determine whether it has jurisdiction. Order 45 CPR governs review of decrees and orders in the High Court and courts below, not the Court of Appeal. Review in this Court falls under Rule 1(2) CAR, invoking its inherent and residual jurisdiction, which is exercised cautiously, sparingly, and only in non-appealable cases serving public interest. Counsel for the applicant conceded the relevant rules were not invoked but argued the defect was a technicality curable under Article 159, an argument the Court rejected.
Additional defects in the application
Even if jurisdiction had been properly invoked, the application was defective for bearing a misleading title suggesting an appeal against the ELC judgment of 14th March 2019 (already determined on 8th March 2024) and for failing to attach the judgment sought to be reviewed and to identify the bench that delivered it.
A review applicant must attach the judgment sought to be reviewed so the Court can assess merit. The impugned judgment, being the Court's own judgment of 8th March 2024, was not attached, and nowhere did the applicant state the bench that heard the appeal, indicating the applicant did not know who determined the case. As a Court of record, the impugned judgment had to form part of the attachments to enable an informed ruling.
Legal principles established
#- An application for review in the Court of Appeal must be brought under Rule 1(2) of the Court of Appeal Rules, which invokes the Court's inherent and residual jurisdiction; Order 45 of the Civil Procedure Rules applies only to the High Court and subordinate courts and cannot found jurisdiction in the Court of Appeal.
- The Court of Appeal's residual jurisdiction to review its own final judgments is limited and is exercised cautiously and sparingly, only in non-appealable cases and where it serves public interest and public confidence in the justice system.
- Article 159 of the Constitution cannot cure a failure to invoke the correct legal provisions conferring jurisdiction.
Court orders
#- 1.The application dated 12th March 2025 is struck out
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- The Court's residual review jurisdiction under Rule 1(2) of the Court of Appeal Rules; the applicant failed to invoke it, instead citing Order 45 of the Civil Procedure Rules and Article 159 of the Constitution, which the Court held did not confer jurisdiction.
Relief refused
#Stay of execution of the judgment delivered on 8th March 2024
The application was fatally defective for failure to invoke the Court's jurisdiction
Review and setting aside of the judgment of 8th March 2024 and a fresh hearing before a different panel
No jurisdiction was invoked under the Court of Appeal Rules or the Appellate Jurisdiction Act; Order 45 CPR applies only to the High Court and courts below
In the alternative, dismissal of the appeal on the ground of error in the judgment
The application did not attach the judgment sought to be reviewed and bore a misleading title
Costs
Costs of the application to the respondent (order for striking out made 'with costs to the respondent')
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.
An application for review to this Court falls under Rule 1 (2) of the Court of Appeal Rules [CAR], which invokes the inherent powers of this Court and the residual jurisdiction to review final judgments of the Court.
The residual jurisdiction of this Court is limited in scope, and it is to be applied cautiously and sparingly in cases whose decisions are not appealable to the Supreme Court; and only where it will serve to promote public interest and enhance public confidence in the rule of law and our system of justice.
Article 159 of the Constitution ought not to be seen as a panacea to cure all manner of indiscretions relating to procedure.
We find that the application is fatally defective for failing to invoke the jurisdiction of this Court, failing to attach the impugned judgment sought to be reviewed and giving a misleading title to the application. In the circumstances, the application is for striking out with costs to the respondent, which we hereby do.
Issues in the judgment
#The record does not state the case number of the miscellaneous application or the underlying appeal (only referenced matters are High Court Civil Case No. 34 of 2009 at Embu and ELC 487 of 2013 at Kerugoya), and no neutral citation is given.
The judgment text misdescribes counsel: it states 'Mr. Njeru did not respond to the issues raised by the applicant in his replying affidavit and the submissions' although Mr. Njeru appears for the applicant and Mr. Nyangau for the respondent; the paragraph appears to intend 'respondent'.
Paragraph numbering is irregular in the original: the sequence runs 9, 11, 12, 13, 11 after paragraph 8, with two paragraphs numbered 11.
The applicant's prayer (a) appears in the record only as 'Moot' with no text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibagi v Njogu (Civil Appeal (Application) 95 of 2019) [2025] KECA 1232 (KLR)", Case Analysis (2025). Miscellaneous Application (application dated 12th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1232/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.