Mbugua & another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & another) v Timber Manufacturers & Dealers Limited
The bottom line
#The Supreme Court will not reopen a final ruling unless there is an obvious mistake or clear fraud.
What this practically means
#The applicants tried to use the Slip Rule to overturn a single judge's decision that marked their notices of appeal as withdrawn. The Supreme Court found no obvious error because there was no record of a pending certification application. The court also said review requires exceptional circumstances like fraud, which the applicants did not show. Their application was dismissed, but they can still challenge the single judge's decision through the proper process—a review by five or more judges under Section 23(2C) of the Supreme Court Act.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is an apparent error on the face of the record in the issuance of the court orders on May 26, 2023 by the honorable judge?
- 2.Whether the applicants have made out a case for review of the orders of the court issued by a single judge?
Key legal issues
#Whether there was an apparent error on the face of the record in the single judge's order marking the notices of appeal as withdrawn.
There was no apparent error because there was nothing on record to show that, at the time the orders were issued, there was a pending application for certification before the Court of Appeal.
The court examined the record and found that almost four years after the notices of appeal were filed, there was no indication of any pending application for certification. The single judge was therefore not mistaken in marking the notices as withdrawn for failure to institute the appeal within the prescribed time under rule 38(1) of the Supreme Court Rules. The court distinguished the Slip Rule, which corrects obvious clerical errors, from a review, which requires exceptional circumstances not demonstrated here.
Whether the applicants had made out a case for review of the single judge's orders.
The applicants did not satisfy any of the exceptional circumstances required for review under section 21A of the Supreme Court Act.
The court noted that the applicants sought to invoke both the Slip Rule and the review jurisdiction. However, they failed to specify under which of the four exceptional grounds for review they were moving the court. The court also clarified that the proper avenue for challenging a single judge's decision is under section 23(2C) of the Supreme Court Act, which allows a party aggrieved by a decision of a single judge to apply for review by five or more judges. The applicants did not pursue this route.
Legal principles established
#- The Slip Rule only corrects obvious clerical mistakes that do not change the judgment's substance.
- Review of a Supreme Court decision is allowed only in exceptional cases like fraud, nullity, or concealment of law.
- Filing a notice of appeal before or after certification is optional under rule 36(4) of the Supreme Court Rules.
- A party aggrieved by a single judge's order must apply for review by five or more judges under Section 23(2C).
- Mere assertions about a pending application are not enough to show error; the record must support them.
Court orders
#- 1.The notice of motion dated June 8, 2023 and filed on July 6, 2023, lacks merit and it be and is hereby dismissed.
- 2.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Supreme Court of Kenya (Single Judge)
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010; sections 3 and 21(4) of the Supreme Court Act, 2011; rule 28(5) of the Supreme Court Rules, 2020
Relief refused
#Review, vary and/or set aside the court orders issued by Hon Lenaola, SCJ on May 26, 2023 marking the 2 notices of appeal as withdrawn
The applicants have not delineated under which of the exceptional circumstances they seek to review the orders, and there is no apparent error on the face of the record.
Costs
No order as to costs.
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 end, we decline to exercise discretion in favour of the applicants as prayed. At all times, the applicants remain at liberty to approach the court under the relevant rule, if at all a determination is made on their alleged application for certification.
The notice of motion dated June 8, 2023 and filed on July 6, 2023, lacks merit and it be and is hereby dismissed.
No order as to costs.
We have previously emphasized in Arvind Shah & 7 others v Mombasa Bricks & Tiles Ltd & 5 others; SC Application No 3 (E008) of 2022 that rule 36(4) makes it optional to file a notice of appeal either before or after certification in a matter of general public importance.
Key timeline
#Practical implications
#Use proper channels for challenging single judges
When a single Supreme Court judge issues a decision, do not file a fresh application for review or slip rule. Instead, apply for review by five or more judges under Section 23(2C) of the Supreme Court Act. The court will not entertain alternative routes that bypass this statutory remedy.
Deadlines in appeals are strictly enforced
If you file a notice of appeal to the Supreme Court, ensure you comply with time limits or have a pending certification application clearly on record. The court will not accept verbal claims of pending applications. Maintain clear documentation to avoid having your appeal marked as withdrawn.
Court mistakes must be obvious to correct
The Slip Rule only fixes clear clerical errors like typos or arithmetic mistakes, not disagreements over facts or law. If you believe a court erred, you must point to something on the record that is obviously wrong. Also, use the correct legal procedure—not just any application—to challenge a single judge's ruling.
Frequently asked questions
#What is the Slip Rule in Kenya's Supreme Court?+
The Slip Rule allows the Supreme Court to correct obvious errors on the face of a judgment, ruling, or order. These errors must be so clear that fixing them does not cause controversy or change the court's intended decision, such as a typo or miscalculation.
How can I challenge a single Supreme Court judge's decision in Kenya?+
You must apply for review before five or more Supreme Court judges under Section 23(2C) of the Supreme Court Act. This is the only proper avenue; filing a separate application for review or slip rule will not work.
Can I appeal to the Supreme Court without certification in Kenya?+
Yes. Under rule 36(4) of the Supreme Court Rules, you may file a notice of appeal before or after certification for a matter of general public importance. However, you must still start the appeal within the prescribed time.
What are exceptional grounds for reviewing a Supreme Court judgment?+
Exceptional grounds include fraud or deceit, lack of jurisdiction, consent given under mistaken belief, or the judgment being based on repealed law or concealed statutes. Normal disagreements or simple errors are not enough.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2026] KEELC 511 (KLR)[2026] KEELC 511 (KLR)4 Feb 2026
- Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2026] KEELC 511 (KLR)[2026] KEELC 511 (KLR)4 Feb 2026applied
- Trattoria Limited v Maina & 3 others[2024] KESC 54 (KLR)30 Aug 2024
Cite this brief
#Cite this brief
Caselaw, "Mbugua & another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & another) v Timber Manufacturers & Dealers Limited", Case Analysis (2023). Civil Application E019 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/86/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.