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Supreme CourtDismissedCivil Application E019 of 2023

Mbugua & another (Suing as the Administrators of the Estate of Joseph Kiarie Mbugua & another) v Timber Manufacturers & Dealers Limited

Supreme Court of Kenya
6 October 2023
1,600 words in judgment
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AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Supreme Court will not reopen a final ruling unless there is an obvious mistake or clear fraud.

What this practically means

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The applicants tried to use the Slip Rule to overturn a single judge's decision that marked their notices of appeal as withdrawn.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

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This was an application by Lawrence M Mbabu and another seeking review, variation, or setting aside of orders issued by a single judge (Lenaola, SCJ) on May 26, 2023, which marked their two notices of appeal as withdrawn for failure to institute the appeal within the prescribed time. The applicants argued that the orders were an apparent error on the face of the record because their application for certification of the matter as one of general public importance was still pending before the Court of Appeal, and therefore time for filing the appeal had not started running. The respondent consented to the application. The Supreme Court (differently constituted) dismissed the application. The court held that there was no apparent error because there was nothing on the record to show that, at the time the orders were issued almost four years after the notices of appeal were filed, there was a pending application for certification. The court distinguished between the Slip Rule (for correcting obvious clerical errors) and the review jurisdiction, which requires exceptional circumstances under section 21A of the Supreme Court Act. The applicants failed to specify which exceptional ground they relied upon. The court also noted that the proper avenue for challenging a single judge's decision is under section 23(2C) of the Supreme Court Act, which allows review by five or more judges. The court declined to exercise its discretion in favour of the applicants but left them at liberty to approach the court under the relevant rule if a determination is made on their alleged application for certification. No order as to costs was made.

Questions the Court framed

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

  1. 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. 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

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01

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.

Holding

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.

Reasoning

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.

02

Whether the applicants had made out a case for review of the single judge's orders.

Holding

The applicants did not satisfy any of the exceptional circumstances required for review under section 21A of the Supreme Court Act.

Reasoning

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

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  • 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

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  1. 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. 2.No order as to costs.

The bench

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

Philomena Mbete Mwilu
P M MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W OukoSCJ
Currently serving
majority
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

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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

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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.

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.
p. 5 Discretion declined; liberty to re-apply after certification determination
The notice of motion dated June 8, 2023 and filed on July 6, 2023, lacks merit and it be and is hereby dismissed.
p. 5 Final order dismissing the application
No order as to costs.
p. 3 Costs order
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.
p. 4 Optional timing of notice of appeal in general public importance matters

Key timeline

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Approximately 2019
Applicants filed notices of appeal to the Supreme Court.
2023-05-26
A single Supreme Court judge marked the notices of appeal as withdrawn for failure to institute the appeal in time.
2023-06-08
Applicants filed an application for review or setting aside of the judge's orders.
Judgment date not specified
The Supreme Court (differently constituted) dismissed the application, finding no error and no grounds for review.

Practical implications

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For lawyers

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.

For businesses

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.

For individuals

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

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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)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.