M'Rutere (Decesaed) (Substituted by Rose Njiru the legal representative of his Estate) v Kathurima (Civil Appeal (Application) 232 of 2018) [2025] KECA 2132 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2132 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CIVIL APPEAL (APPLICATION) 232 OF 2018 S OLE KANTAI, JW LESSIT & A ALI-ARONI, JJA NOVEMBER 28, 2025 BETWEEN M'NCEERI M'RUTERE (DECESAED) (SUBSTITUTED BY ROSE NJIRU THE LEGAL REPRESENTATIVE OF HIS ESTATE) ..................................... APPLICANT AND NICHOLAS KATHURIMA ................................................................ RESPONDENT (Being an application for review against the Judgment and Orders of the Court of Appeal at Nyeri (Karanja, Kimari & Muchelule, JJA.) delivered on 22nd September, 2023 in C.A. No. 232 of 2018) RULING 1. The applicant Rose Njiru by notice of motion said to be brought under various provisions of law including Articles 40 and 159 (2) of the Constitution of Kenya, sections 3A, 3B and 4 of the Appellate Jurisdiction Act, Rule 5 (2)(b), 18(1) Court of Appeal Rules 2010, section 5 of the Court of Appeal (Organization and Administration) Act, section 80 of the Civil Procedure Act prays in the main that we be pleased to set aside and review the judgment and court order dated 22nd September, 2023 based on new and important evidence discovered; that we be pleased to allow the appellant’s appeal; allow and grant any other order that we may find fit. In grounds in support of the motion and in a supporting affidavit the applicant says that the appeal was dismissed on 22nd September, 2023; that the respondent has commenced the process of execution and has issued an eviction notice to the applicant who has occupied the property with her family since 1969; that the applicant has just discovered that ownership and title to the subject land title No. Kirua/Nkando/676 is being challenged by a different party who lays claim over the same property of which the applicant has been in possession; that there is a third party who lays claim over the same property and has filed suit in Meru CM ELC No. 116 of 2023 John Kimathi v John Nicholas Muthuri; that the applicant seeks a review of the said judgment there https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2132/eng@2025-11-28 1
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being new and important information; that the wider interest of justice would be served if the matter is heard without delay; that the applicant has an arguable appeal with high probability of success; that the respondent will not be prejudiced if the orders sought are granted and that the applicant is ready to abide by any conditions that the court will give. 2. Attached to the application is the judgment of this Court (W. Karanja, Kimaru & Muchelule, JJA) delivered on 22nd September, 2023 where the court found that the appeal had no merit and dismissed it with costs. We have not seen any replying affidavit to the motion. We have seen and considered the applicant’s submissions and the digest of authorities attached. 3. The circumstances in which this Court reviews its judgment are few, prior the Constitution of Kenya, 2010, this Court was the apex court in the land and its judgments were final save on what is referred to as slip the rule where some corrections could be made to the judgment. With the creation of the Supreme Court of Kenya this is not the final court but even then review of judgments of this Court is allowed only in very exceptional circumstances. 4. This Court considered the issue of reviewing of its judgments in Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited & Another [2014] eKLR where parameters for review of judgments were considered as follows: The case-law on the subject of review jurisdiction shows that two principles seem to be in competition. There is the “principle on finality” of litigation on the one hand which does not support review and there is “the justice principle” on the other hand which favours limited review predicated on the basis that the object of litigation is to do justice... ... It is our finding that this Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence in the administration of justice. This is jurisdiction that has to be exercised cautiously and only where it will serve to promote public interest and enhance public confidence in the rule of law and our system of justice. 62. 5. The Supreme Court of Kenya considered the same issue and had this to say in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR: "[33] 6. This Court will be reluctant to invoke its residual jurisdiction of review where, as here, there is laches or where legal rights of innocent third parties have vested during the intervening period which cannot be interfered with without causing further injustice." It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law." We have not seen any of those circumstances in the motion before us. We are not told that there is any error in the judgment. In the event this is not a suitable case for review and we find no merit in the motion which we hereby dismiss. We make no order on costs. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. OLE KANTAI https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2132/eng@2025-11-28 2
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................................... JUDGE OF APPEAL J. LESIIT ................................... JUDGE OF APPEAL ALI- ARONI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original SIGNED DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2132/eng@2025-11-28 3
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