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Court of AppealDismissedNotice of motion following appeal dismissed on 22nd September 2023· [2025] KECA 2132 (KLR)

M'nceeri M'rutere (decesaed) (substituted By Rose Njiru The Legal Representative of His Estate) v Nicholas Kathurima

Court of Appeal of Kenya
28 November 2025
843 words in judgment
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The bottom line

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The Court of Appeal refused to reopen Rose Njiru's dismissed land appeal, confirming its judgments can only be reviewed in very exceptional circumstances.

What this practically means

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Executive summary

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Rose Njiru, whose appeal over title to land parcel Kirua/Nkando/676 was dismissed by the Court of Appeal (W. Karanja, Kimaru & Muchelule, JJA) on 22nd September 2023, moved the same Court by notice of motion to set aside and review that judgment on the ground of newly discovered evidence. She asserted that a third party had filed a fresh suit in Meru CM ELC No. 116 of 2023 (John Kimathi v John Nicholas Muthuri) challenging ownership of the same land, and that the respondent had begun execution by issuing an eviction notice against her, she having occupied the property since 1969. The motion invoked Articles 40 and 159(2) of the Constitution, sections 3A, 3B and 4 of the Appellate Jurisdiction Act, Rules 5(2)(b) and 18(1) of the Court of Appeal Rules 2010, section 5 of the Court of Appeal (Organization and Administration) Act and section 80 of the Civil Procedure Act. There was no replying affidavit. The Court, differently constituted (Ole Kantai, Lesiit and Ali-Aroni, JJA), reaffirmed that following the advent of the Supreme Court, review of its own judgments lies only in very exceptional circumstances, drawing on Benjoh Amalgamated and the Supreme Court's decision in Menginya Salim Murgani, which cautions against review where there is laches or vested third-party rights. Finding no error in the judgment and none of the exceptional circumstances established, the Court dismissed the motion and made no order on costs. The judgment of 22nd September 2023 dismissing the appeal therefore stands undisturbed.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction to review its own judgments

Holding

Review of the Court of Appeal's own judgments is available only in very exceptional circumstances; the Court has a residual jurisdiction to correct errors of law occasioning real injustice, exercised cautiously.

Reasoning

Before the 2010 Constitution the Court of Appeal was the apex court and its judgments were final, subject only to the slip rule. With the Supreme Court's creation it is no longer final, but review remains exceptional. In Benjoh Amalgamated the Court reconciled the finality principle with the justice principle, recognising a residual review jurisdiction to correct errors of law that occasion real injustice or miscarriage of justice, exercised cautiously and in the public interest.

p. 2
02

Whether the applicant satisfied the criteria for review

Holding

The applicant failed: no error in the judgment was identified and no exceptional circumstance was shown.

Reasoning

The applicant relied on claimed newly discovered evidence concerning a third party's claim over the suit land in a separate suit, and on impending execution by the respondent. The Court found that none of the exceptional circumstances recognised in the case-law - such as error in the judgment - was demonstrated, and the application disclosed no basis for disturbing the dismissed appeal.

p. 2

Legal principles established

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  • The Court of Appeal, not being the final court, has only a residual jurisdiction to review its own decisions, exercisable cautiously in exceptional circumstances to correct errors of law occasioning real injustice.
  • After passing judgment, a court becomes functus officio and cannot revisit the judgment on the merits save as provided by law.

Court orders

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  1. 1.The notice of motion seeking review of the judgment of 22nd September 2023 is dismissed
  2. 2.No order on costs
On appeal from
Court of Appeal of Kenya (full bench decision under review)
Jurisdiction invoked
Articles 40 and 159(2) of the Constitution of Kenya; sections 3A, 3B and 4 of the Appellate Jurisdiction Act; Rules 5(2)(b) and 18(1) of the Court of Appeal Rules 2010; section 5 of the Court of Appeal (Organization and Administration) Act; section 80 of the Civil Procedure Act

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, "M'nceeri M'rutere (decesaed) (substituted By Rose Njiru The Legal Representative of His Estate) v Nicholas Kathurima", Case Analysis (2025). Notice of motion following appeal dismissed on 22nd September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2132/eng@2025-11-28

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