Songole & another v Kwenya & another (Civil Appeal 211 of 2019) [2025] KECA 1778 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to re-argue a lost case — errors must be obvious, and real complaints belong in an appeal.
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 contention about the Land Control Board consent was addressed by Mukunya, J.
- 2.Whether Matheka, J. had a basis upon which to review the court's decision
Key legal issues
#Whether there was a mistake or error apparent on the face of the record warranting review
There was none. The alleged error (failure to obtain land control board consent) was neither self-evident on the record nor in fact existent, as Mukunya, J. had expressly addressed the consent issue by reference to Khamoni PM's ruling of 18th August 1987.
The Court applied Order 45 rule 1 and the consistent line of authority requiring an error on review to be conspicuous upon a cursory look at the record. Counsel for the appellants conceded the error was not manifest. The Court found the alleged error was not only unapparent but non-existent, the consent issue having been dealt with by Khamoni, PM and again by Mukunya, J. What remained was a challenge to the correctness of the decision, which lies on appeal, not review.
Whether Matheka, J. erred in dismissing the application for review
No. She correctly found no error apparent on the face of the record and no sufficient reason for review; reviewing the decision would have required her to sit in an appellate posture over a decision of a concurrent court.
The Court reiterated that interference with judicial discretion is only warranted where the judge misapprehended the facts, misdirected herself on law, took into account irrelevant matters, failed to consider relevant ones, or was plainly wrong. None was established. The respondents correctly argued that the appellants were attempting to re-litigate determined issues, contrary to the objective of review, and that a review on 'sufficient reason' must be analogous to the specified grounds.
Legal principles established
#- An error apparent on the face of the record must be self-evident and require no elaborate argument; a complaint about the correctness of a decision, or an error requiring lengthy reasoning, is a ground for appeal, not review.
- A lower court cannot review its own decision or that of a concurrent court by reassessing the merits; the proper remedy for an erroneous conclusion is an appeal.
Court orders
#- 1.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Land and Environment Court (High Court) at Kakamega
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (statutory appellate jurisdiction; specific provision not stated in the judgment)
Relief refused
#Setting aside the ruling of Matheka, J. dismissing the application for review, and reinstatement of the suit
There was no error apparent on the face of the record and no sufficient reason for review; the alleged error had already been addressed by Mukunya, J., and the complaint was at best a matter for appeal, not review
Costs
The appeal was 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.
In the premises, this appeal is without merit and we dismiss it with costs.
Review is impermissible without a glaring omission, evident mistake or similar ominous error.
Misconstruing a statute or other provision of law cannot be a ground for review.
We accordingly cannot fault the learned Judge as there was no basis upon which she would have exercised the power of review without doing violence to the applicable principles.
An application for review can only be allowed on very strong grounds particularly where it can amount to re-opening an application.
Issues in the judgment
#The judgment contains apparent typographical/transcription errors: dates are inconsistent (paragraph 3 refers to 'orders of 13th December 1995' while the opening paragraph refers to '13th December 1985'; the quoted judgment of Mukunya, J. in paragraph 19 refers to 'section 143 (1) of Land Control Act' though the Land Control Act has no such provision as pleaded elsewhere); the appellants' names do not appear in the judgment text and the case number of the appeal before this Court is not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Songole & another v Kwenya & another (Civil Appeal 211 of 2019) [2025] KECA 1778 (KLR)", Case Analysis (2025). Appeal from the Land and Environment Court at Kakamega (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1778/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.