Waswa v Nyongesa (Civil Appeal (Application) 49 of 2018) [2025] KECA 1777 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reopen a land judgment, confirming that a lawyer's neglect is never a valid reason to revive a decided case.
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 of Appeal has residual jurisdiction to review its own judgment in the circumstances of this application
- 2.Whether the respondent's failure to attend the hearing and file submissions was attributable to lack of service or to his counsel's negligence
- 3.Whether the exceptional circumstances for review identified in Fredrick Otieno Outa v Jared Odoyo Okeyo were established
Key legal issues
#Scope of the Court of Appeal's power to review its own judgment
The Court has only residual, exceptional jurisdiction to review its own decisions, as recognised in Benjoh Amalgamated and Standard Chartered Financial Services and delimited by the Supreme Court in Outa.
Relying on Benjoh Amalgamated, Standard Chartered Financial Services and the Supreme Court's decision in Outa, the Court held that review of its own judgments is confined to exceptional circumstances: fraud or deceit, nullity, mistaken belief as to consent, or judgment based on repealed law or a deliberately concealed statutory provision. None was shown here; the complaint was mere neglect by counsel and inattention by the litigant.
Service on counsel and diligence of the litigant
The registry did all that the law required; the record showed counsel attended case management and was emailed the hearing notice and reminders, and the respondent, aware of the appeal since 2018, sat on it for over four years.
The Court accepted the record that counsel attended case management and was reminded by email to file submissions and served with the hearing notice at the correct email address. Counsel's failure was characterised as professional misconduct, with the respondent having recourse elsewhere. The respondent's four-year inaction disentitled him to the court's indulgence.
Finality principle in concluded land disputes
The finality principle should prevail to bring conclusiveness to the land dispute between the parties.
The Court weighed the interests of justice and held that the conclusiveness of judgments must be upheld where a party seeks to reopen a concluded appeal through negligence rather than any of the recognised exceptional grounds.
Legal principles established
#- The Court of Appeal has residual inherent jurisdiction to review its own decisions only in exceptional circumstances, as delimited by the Supreme Court in Outa: fraud or deceit, nullity, consent procured by mistake, or judgment based on repealed/concealed law
- Where the registry duly serves counsel with notice of case management and of the hearing (including by the counsel's own email address), a litigant who fails to follow up on his appeal for years cannot invoke the court's review jurisdiction; mistakes of counsel are not visited on the court's finality
Court orders
#- 1.The respondent's notice of motion dated 7th September 2023 seeking stay of execution, setting aside of the judgment and rehearing of the appeal is dismissed
- 2.Costs of the application awarded as stated in the final order
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Jurisdiction invoked
- Rule 102(2) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act (inherent power of the Court of Appeal to review its own judgment)
Relief refused
#Stay of execution of the judgment delivered on 23rd June 2023
The application lacked merit; the registry had duly served counsel and the respondent was not a vigilant litigant; the finality principle would serve the interests of justice
Setting aside of the judgment and rehearing of the appeal
None of the exceptional circumstances for review (fraud, nullity, misleading of the court, repealed law) was established; counsel's neglect is not a ground
Costs
The application was dismissed "with costs to the respondent" (as printed in the judgment, although the respondent was the applicant)
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.
It is our considered view that, the registry did all that was required by the law to invite the respondent’s counsel for case management and for the hearing of the appeal.
His is a clear case of professional misconduct. The respondent has recourse elsewhere.
We find that the finality principle to have conclusiveness to the land dispute between the appellant and the respondent would serve the interests of justice in this case.
In the final analysis, we find no merit in the application which we dismiss with costs to the respondent.
Issues in the judgment
#The costs order as printed appears to be internally inconsistent: the applicant was the respondent (Miletus Charles Nyongesa), yet the judgment states the dismissed application was dismissed 'with costs to the respondent'
The judgment quotes the earlier Court of Appeal judgment's orders in the first person ('In the end my considered view of the appeal...') although the present bench (Asike-Makhandia, Omondi, Muchelule, JJ.A) differs from the bench that heard the appeal (Kiage, Mumbi Ngugi & Tuiyott, JJ.A); paragraph 12 also announces a quotation from Benjoh Amalgamated ('It stated as follows:-') but no quoted text follows
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waswa v Nyongesa (Civil Appeal (Application) 49 of 2018) [2025] KECA 1777 (KLR)", Case Analysis (2025). Not stated in the judgment (motion dated 7th September 2023 in the appeal between Zakayo Waswa and Miletus Charles Nyongesa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1777/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.