Mwangi & another v Kibowen (Civil Appeal E189 of 2021) [2026] KECA 1503 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that hiring your own expert after losing in court is not new evidence and cannot reopen 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 appellants established grounds for review of the order of 12th July 2018 adopting the County Surveyor's report dated 31st July 2017 — namely error apparent on the face of the record and discovery of new and important matter (Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules).
- 2.Whether the appellants' application dated 20th July 2020 was res judicata, the issues raised in it having been determined in the ruling dated 7th May 2019.
Key legal issues
#Whether an application seeking to introduce an alternative survey report amounts to a review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
No. It is an attempt to reopen the case afresh and introduce new evidence, which cannot be sustained in an application for review.
The Court reproduced Section 80 of the Civil Procedure Act and Order 45 Rule 1, which confine review to discovery of new and important matter not obtainable with due diligence, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. Endorsing National Bank of Kenya Ltd vs Njau, it held a reviewable error must be self-evident. The private surveyor was engaged only after the impugned ruling, so the evidence could have been obtained earlier; the plea was in substance a disguised appeal and an abuse of process.
What constitutes an error apparent on the face of the record justifying review.
Only a self-evident error or omission requiring no elaborate argument; a perceived difference of judicial opinion or an incorrect exposition of the law is not a ground for review.
The Court restated the classic bounds of review from National Bank of Kenya Ltd vs Njau: review corrects an apparent error or omission on the part of the court, but the error must be self-evident and not need elaborate argument. It is not sufficient that another judge could have taken a different view or that the court proceeded on an incorrect exposition of the law. The appellants' attack on the credibility of the surveyor's report and sketch maps amounted to a request to re-evaluate evidence, which review does not permit.
Whether the application dated 20th July 2020 was barred by res judicata under Section 7 of the Civil Procedure Act.
Yes. The issues raised had been raised in the earlier application and determined in the ruling of 7th May 2019 between the same parties; they could not be raised afresh.
Section 7 of the Civil Procedure Act prohibits a court from trying any issue directly and substantially in issue in a former suit between the same parties that was heard and finally decided. Relying on Kithaka vs Wangari, the Court stressed that litigation must come to an end and that a court cannot be asked to determine the same issue repeatedly; the Supreme Court's decision in Kenya Commercial Bank Ltd vs Muiri Coffee Estate confirms that res judicata secures order and efficacy in adjudication. The prayers for cross-examination and resurvey had been determined in the ruling of 7th May 2019.
Legal principles established
#- An application for review cannot be used to reopen a concluded case afresh or to introduce new evidence in the form of an alternative expert report; such a plea is a disguised appeal.
- A reviewable error must be self-evident and require no elaborate argument; it is not sufficient that another Judge could have taken a different view or that the court proceeded on an incorrect exposition of the law.
- Section 7 of the Civil Procedure Act absolutely bars a court from entertaining issues already heard and finally determined between the same parties or those claiming under them; litigation must come to an end.
- Evidence from an expert engaged only after the impugned ruling, when the party could have engaged one earlier with due diligence, is not new and important matter for review.
Court orders
#- 1.The appeal is dismissed.
- 2.Costs of the appeal are awarded to the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter reached the Court of Appeal as an appeal against the ruling of Odeny, J dated 29th October 2020 dismissing the appellants' application for review.
Relief refused
#Review of the order of 12th July 2018 adopting the County Surveyor's report dated 31st July 2017 (setting aside/varying that order)
The plea was not a review but an attempt to reopen the case afresh and introduce new evidence; the private surveyor's report did not meet the threshold of new and important matter.
Adoption of the alternative surveyor's reports (report dated 22nd February 2016 and the private surveyor's report dated 5th March 2020 by M/s Prestolan Real Estate & Properties)
Engaging a private surveyor after the impugned ruling is not new evidence; the surveyor could have been engaged earlier with due diligence.
Summons to the County Surveyor for cross-examination on the report dated 31st July 2017 and a resurvey of parcel Karuna/Sosiani Block 2 (Progressive) 289
Res judicata — the same issues had been determined between the same parties in the ruling dated 7th May 2019.
Costs
The appeal is dismissed with costs to the respondent (verbatim: "this appeal fails and is dismissed 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.
Consequently, this appeal fails and is dismissed with costs to the respondent.
In our view, the appellants’ plea was not an application for review, but an attempt to re-open the case afresh, to introduce new evidence in the form of an alternative survey report.
The error or omission must be selfevident and should not require an elaborate argument to be established.
The application of 20th July 2020 was therefore res judicata and the learned Judge proceeded within the law to reject it.
As has been stated time without number, the doctrine of res judicata rests on the salutary principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over.
The fact that the applicants engaged a private surveyor after the fact is not new evidence.
Issues in the judgment
#The impugned ruling of 29th October 2020 is described in the opening paragraph as having dismissed the appellants' notice of motion dated 18th July 2018, but the body of the judgment shows that motion was dealt with by the ruling of 7th May 2019, and that the ruling of 29th October 2020 dismissed the application dated 20th July 2020.
The date of the earlier (first) application is inconsistently stated in the judgment: the opening paragraphs give it as 18th July 2018, while the court's res judicata reasoning refers to an application dated 8th July 2018.
The judgment dated 15th October 2014 is said to have directed excision in terms of a survey report dated 31st July 2017, which is chronologically inconsistent with the narrative that the consent, the survey and both surveyor's reports post-dated that judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & another v Kibowen (Civil Appeal E189 of 2021) [2026] KECA 1503 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1503/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.