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Court of AppealDismissedCivil Appeal (Application) E013 of 2026

Mugambi & 5 others v Mwithi & 7 others

Court of Appeal
25 September 2026
1,951 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to reopen a concluded land case because the applicants only gathered supporting evidence after losing.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Meru (SG Kairu, HI Ong'udi & M Sila, JJ.A) dismissing an application by Notice of Motion dated 2nd February 2026 in which the applicants sought review, variation and/or setting aside of the Court's own judgment of 11th December 2025 dismissing their appeal against the Environment and Land Court at Chuka's dismissal of their adverse possession claim in ELC OS No. 1 of 2019 (consolidated with ELC OS No. 20 of 2019). The applicants relied on 'new and important evidence' - a letter and sworn statement from the Area Chief dated 28th January 2026 confirming their long-standing occupation of the suit land, South Tharaka/Tunyai A/390. Counsel conceded the application had wrongly cited Section 80 of the Civil Procedure Act and Order 45 Rule 1, and instead invoked the Court's residual jurisdiction under Section 3 of the Appellate Jurisdiction Act, the Judicature Act, Rule 1(2) of the Court of Appeal Rules 2022 and Articles 50 and 159 of the Constitution, supported by Nguruman, Standard Chartered (Manchester Outfitters) and Benjoh Amalgamated. The respondents did not appear. The Court held that the review jurisdiction is very narrow and exceptional, that due diligence requires active inquiry during litigation, and that the applicants gave no explanation for never approaching the Chief's office before judgment. Applying the Supreme Court's principles in Mahamud vs. Mohamad, the Court found the application was an impermissible attempt to patch up a weak case and remit the matter for retrial. The application was dismissed with no orders as to costs, the respondents having not participated.

Questions the Court framed

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

  1. 1.Whether the applicants have met the threshold for the Court to review its own judgment dismissing their appeal, on the ground of newly discovered evidence

Key legal issues

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01

Whether newly obtained evidence (a Chief's letter confirming long occupation) justifies review of a concluded Court of Appeal judgment

Holding

No. The evidence was belatedly sought and obtained for purposes of the application; the applicants showed no due diligence in obtaining it during the pendency of the litigation, and the application was an attempt to patch up a weak case.

Reasoning

The Court defined due diligence as the standard of prudence, reasonable care and active inquiry expected of a party in litigation. Litigation had been ongoing since 2019, yet there was no evidence the applicants approached the Chief's office before or during the ELC proceedings or before the appeal was heard. The Chief's office existed throughout; the letter was obtained on 28th January 2026 only after judgment. Applying the Supreme Court's additional-evidence principles in Mahamud, the application sought to fill evidentiary gaps and make a fresh case, which the narrow review jurisdiction does not permit.

p. 4

Legal principles established

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  • The Court of Appeal has residual jurisdiction to reopen and rehear a concluded matter only in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation.
  • An applicant invoking the Court's narrow review jurisdiction must bring itself within those narrow confines; due diligence requires active inquiry during the pendency of litigation.
  • Additional evidence cannot be used to fill gaps or patch up the weak points in an unsuccessful party's case.

Court orders

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  1. 1.The application dated 2nd February 2026 is dismissed
  2. 2.No orders as to costs

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Chuka
ELC OS No. 1 of 2019 (consolidated with ELC OS No. 20 of 2019)
Jurisdiction invoked
Residual jurisdiction of the Court of Appeal to review its own judgment, invoked under Section 3 of the Appellate Jurisdiction Act, Section 3 of the Judicature Act, Rule 1(2) of the Court of Appeal Rules 2022 and Articles 50 and 159 of the Constitution

Relief refused

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Review, variation and/or setting aside of the Court of Appeal judgment of 11th December 2025 dismissing the appeal

The new evidence (Area Chief's letter) was belatedly sought and obtained; applicants failed to exercise due diligence and sought to patch up a weak case

p. 4

Setting aside of the ELC judgment of 25th May 2021 and remittal for retrial

Not permissible as a basis for exercising the Court's very narrow review jurisdiction

p. 4

Costs

No orders as to costs, as the respondents did not participate in the appeal

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.

We reiterate that position and stress that this Court is clothed with residual jurisdiction to reopen and rehear a concluded matter where the interest of justice demands, but that such jurisdiction will only be exercised in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation.
p. 3Residual jurisdiction to review a concluded judgment
Due diligence, as we understand it in the context of litigation would refer to the standard of prudence, reasonable care, and active inquiry expected of a party in legal proceedings.
p. 4Meaning of due diligence in litigation
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
p. 4Limits on additional evidence by unsuccessful parties
The application fails and is hereby dismissed. As the respondents did not participate in the appeal, we make no orders as to costs.
p. 4Final orders and costs

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, "Mugambi & 5 others v Mwithi & 7 others", Case Analysis (2026). Civil Appeal (Application) E013 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1906/eng@2026-09-25

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