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Court of AppealDismissedApplication dated 16th February 2024 (Review of judgment dated 25th September 2015)

Mudembei & 3 others v Wafula & 13 others (Civil Appeal (Application) 81 of 2011) [2026] KECA 343 (KLR)

Court of Appeal of Kenya
27 February 2026
1,542 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to reopen its 2015 land dispute judgment, confirming it can only fix clerical slips, not reargue cases, even after long delays.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Kisumu (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJAA) deals with an application dated 16th February 2024 seeking stay of execution of a taxed bill of costs and review of the Court's own judgment delivered on 25th September 2015 in a land dispute over parcel Kakamega/Soy/113. The stay prayer was conceded as overtaken by events, leaving only the review prayer. The applicants, heirs of the alleged original allottee Sabatia Musiani Asambwa, argued that the judgment erred in finding that a Supplementary Record of Appeal dated 29th November 2013 was filed without leave, when leave had allegedly been granted on 13th November 2013, contending this was an error apparent on the face of the record. The respondents, though served, neither responded nor appeared. The Court restated that it has no general power of review: its jurisdiction is confined to correcting clerical or accidental slips under the slip rule and, exceptionally, to reopening an appeal to avert manifest injustice. It held that the alleged error was a legal conclusion on Rule 29 compliance rather than a patent slip, that the documents relied upon had not been properly admitted under Rule 29, and that the delay of nearly ten years was inordinate, with illness, bereavement and financial constraints failing to meet the very high threshold for reopening. Emphasising finality in litigation, especially in land disputes long settled on the ground, the Court found no fraud, nullity or procedural defect and dismissed the application with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to review its own final judgment delivered on 25th September 2015
  2. 2.Whether the alleged error regarding leave to file the Supplementary Record of Appeal constitutes an error apparent on the face of the record under the slip rule
  3. 3.Whether the inordinate delay and the reasons advanced justify reopening a concluded appellate judgment

Key legal issues

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01

Scope of the Court of Appeal's review jurisdiction

Holding

The Court's review power is limited to the slip rule and exceptional reopening to avert manifest injustice; the Civil Procedure Act's review provisions apply to the High Court and subordinate courts, not this Court.

Reasoning

The Court distinguished its position from the High Court, which derives review jurisdiction from Section 80 of the Civil Procedure Act and Order 45. The applicants' application was anchored on provisions that do not confer review jurisdiction on this Court over its final judgments. Although Article 159 permits the Court to look past such an omission, the substance of the relief sought was a merits re-argument of a concluded appeal, which falls outside the narrow review jurisdiction.

p. 3
02

Whether the alleged error was a patent slip or a legal conclusion

Holding

The statement about the Supplementary Record of Appeal concerned a legal conclusion on Rule 29 compliance, not a clerical or typographical mistake.

Reasoning

The Court held that the distinction between leave to file a supplementary record for completeness and leave to admit additional evidence under Rule 29 was a matter of legal interpretation addressed in the judgment itself. Such an interpretive conclusion cannot found a review, and the documents relied upon were not properly admitted under Rule 29, so the Court was entitled to reject them.

p. 3
03

Effect of inordinate delay and finality of litigation

Holding

A delay of nearly ten years in seeking reopening is inordinate and the reasons of illness, bereavement and financial constraints do not surmount the very high threshold.

Reasoning

The Court weighed the public interest in finality, particularly in land disputes long settled on the ground, against the applicants' grievances. It found no fraud, nullity or procedural defect intrinsic to the judgment had been demonstrated, and held that prejudice to finality outweighed the applicants' explanations for the delay.

p. 3

Legal principles established

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  • The Court of Appeal has no general power of review; its jurisdiction is confined to the slip rule and, exceptionally, to reopening an appeal to avert manifest injustice
  • An error apparent on the face of the record must be self-evident and not require elaborate argument
  • Review cannot be used as a backdoor appeal or to relitigate matters already determined
  • Reopening a concluded appeal after inordinate delay undermines finality and certainty in litigation

Court orders

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  1. 1.The application dated 16th February 2024 is dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Court of Appeal of Kenya (own judgment under review)
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Orders 45 and 51 of the Civil Procedure Rules; Rules 1(2) and 37(1) of the Court of Appeal Rules; Article 159 of the Constitution of Kenya

Relief refused

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Review of the Court's judgment dated 25th September 2015

The relief sought is a substantive merits review of a final judgment, outside the slip rule and the Court's narrow review jurisdiction, brought after inordinate delay

p. 4

Stay of execution of the taxed bill of costs

Prayer conceded as overtaken by events by counsel for the applicants

p. 2

Costs

The application dated 16th February 2024 is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

this Court has no general power of review. Its jurisdiction is limited to correction of clerical or accidental slips under the slip rule, and in the most exceptional circumstances, to reopening an appeal to avert a manifest injustice.
p. 3Scope of Court of Appeal review jurisdiction
The application dated 16th February 2024 is accordingly dismissed with costs to the respondents.
p. 4Final orders - dismissal
The delay is inordinate, and the prejudice to finality outweighs the applicants’ grievances.
p. 4Finality versus delay
Finality in litigation particularly in land disputes long since executed and settled on the ground, carries significant public interest weight. No fraud, nullity, or procedural defect intrinsic to the judgment has been demonstrated.
p. 4Finality in land disputes

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, "Mudembei & 3 others v Wafula & 13 others (Civil Appeal (Application) 81 of 2011) [2026] KECA 343 (KLR)", Case Analysis (2026). Application dated 16th February 2024 (Review of judgment dated 25th September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/343/eng@2026-02-27

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