David Kirimi Charles (Legal Representative of Abraham Kailemia Ikigu - Deceased) v Muntu Kirimania Mungania (Legal Representative of Doris Kinanu Kirimania - Deceased)

Ikigu, lost her life. Although the appellant had led a defence, he did not appear at the trial, and the hearing proceeded ex parte. 3. The applicant unsuccessfully led objection proceedings against execution of the judgment and his appeal to the High Court of Kenya at Meru arising from the objection proceedings, met the same fate. When the applicant was committed in a bid to execute the decree, he once again unsuccessfully appealed to the High Court. Ultimately, he appealed to this Court vide Civil Appeal No. 260 of 2019, which he did not pursue. It is worth noting that the applicant did not appeal against the judgment of the subordinate court dated 20th January 2012. 4. Undeterred, the applicant lodged a constitutional petition in the High Court of Kenya at Meru challenging the proceedings and the decision of the subordinate court. He alleged violation of his constitutional rights and sought leave to adduce further evidence. That petition was dismissed by the High Court on 6th May 2019 after it found the same to be an abuse of the process of the court. In response, the applicant lodged in this Court Civil Appeal No. 154 of 2019. 5. About two months after the judgment of the High Court in the constitutional petition, the applicant went back to the subordinate court and applied for review and setting aside of the judgment dated 20th January 2012, on the grounds that he was wrongly sued; that he had not been served with the hearing notice; and that the rules of natural justice were violated. That application, led about 8 years after the judgment, was dismissed by the subordinate court and the applicant’s appeal to the High Court met the same fate. Ultimately, he led another appeal in this Court, being Civil Appeal No. 86 of 2020. 6. The two appeals by the applicant, namely, Civil Appeal No. 154 of 2019 and Civil Appeal No. 86 of 2020 were consolidated, heard and dismissed vide the judgment of this Court dated 4th April 2025. In dismissing the appeals, the Court found that, as regards the constitutional petition, the applicant was abusing the process of the court in a bid to circumvent the guaranteed right of appeal, which he was unwilling to invoke because of his own laches. As regards the appeal against the refusal to review and set aside the judgment of the subordinate court, the Court found that the rst appellate court did not err by refusing to interfere with the exercise of discretion by the subordinate court due to, among other things, the period of delay occasioned by the applicant. 7. Accordingly, the Court dismissed the consolidated appeal, with costs. That is the judgment which the applicant seeks to review and set aside in the present application. 8. The application is founded on a surfeit of grounds running to 25, some with sub-grounds. Beyond lacking in precision, the grounds are verbose, repetitive and overlapping. Shorn of the repetitions and verbosity, the grounds advanced for review are that the Court has jurisdiction to review its decisions upon discovery of new evidence or due to an error apparent on the face of the record; that there is an error apparent on the face of the record because the Court proceeded on the erroneous belief that the applicant was the administrator of the estate of one Charity Nyawira Kailemia (deceased), while he was not, and by holding that he was not aggrieved by the judgment of the subordinate court, while he was; that the Court proceeded on the basis of technicalities instead of invoking Article 159 of the Constitution, thereby occasioning injustice to the applicant; that the Court ignored the fact that the judgment of the subordinate court was obtained by fraud and misrepresentation that the applicant had been served with the hearing notice; that the applicant stands to suer irreparable loss and damage; that his constitutional rights under Articles 20(1), 21, 25(c), 27(1), 48, 50(1), 159(2) (e) and 160(1) of the Constitution have been infringed; and that the respondent will not suer any prejudice if the application for review is granted. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1792/eng@2026-09-25 2

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9. Those assertions are reiterated in the applicant’s written submissions dated 29th May 2025 and it will add no value to rehash them, save to add that the applicant contends that this Court, being not the nal court, has residual jurisdiction to review its decisions to which there is no right of appeal, so as to correct errors of law that have occasioned real injustice or failure or miscarriage of justice, thus eroding public condence in the administration of justice. In support of the proposition the applicant relies on the decision of this Court in Standard Chartered Financial Services Ltd & 2 Others v. Manchester Outtters Ltd. [2016] eKLR. 10. The applicant also cited the decision in Kipkoech Kangongo & 62 Others v. Board of Governors Sacho High School & 5 Others [2015] KECA 970 (KLR) and contended that this Court has jurisdiction under rule 31 of the Court of Appeal Rules to remit the matter back to the High Court. We do not understand the relevance of that decision in the present application where the applicant seeks to review and set aside a judgment of this Court. 11. At the hearing of the application, there was no appearance for the applicant, though his advocates were duly served with a hearing notice. Mr. Mokua, learned counsel, appeared for the respondent and informed the Court that the respondent had not led any submissions but was relying only on a replying adavit sworn on 9th June 2025. 12. In the said adavit, it is deposed that the application for review has no merit and is an abuse of the process of the Court. It is also averred that the application is an illegitimate attempt to re- litigate the case, all the issues he raised having already been considered and determined. It is also contended that litigation must come to an end, the judgment of the subordinate court having been rendered more than 15 years ago. 13. We have carefully considered this application. From the outset, we harbour no doubt that the application is utterly misconceived. To begin with, section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, under which the applicant purports to move the Court and which provide for review of decrees and orders apply to the High Court and courts subordinate thereto, but not in this Court. Section 2 of the Civil Procedure Act denes the word “court” to mean: “ the High Court or a subordinate court, acting in the exercise of its civil jurisdiction.” 14. This Court is neither a High Court nor a court subordinate to the High Court. Accordingly, all the purported grounds for review identied by the applicant in support of an application for review under the Civil Procedure Act and Rules have no relevance in this Court. 15. Similarly, neither the rules of this Court cited by the applicant, nor the provisions of the Constitution confer on this Court jurisdiction to review its own decisions. Rule 37 of the Court of Appeal Rules, also known as the “slip rule”, is meant for correction of clerical or arithmetic errors or mistakes arising from accidental slip or omission and cannot be invoked as the basis for review of decisions of this Court in the manner pursued by the appellant. On the same note, the applicant cannot rely on the overriding objective to review and set aside a decision or order of the Court because the intendment of the overriding objective is to cure minor procedural lapses, particularly if they have no jurisdictional implications. (See Lemanken Aramat v. Harun Meitamei Lempaka & 2 Others [2014] (eKLR) and Mradula Suresh Kantaria v. Suresh Nanalal Kantaria, CA No. 277 of 2005.) 16. The jurisdiction of this Court to review its decisions is inherent, residual and available only in exceptional and limited cases. That jurisdiction is exercised with circumspection to ensure that an application for review is not a disguised appeal from the decision of the Court. The true purpose of the exceptional jurisdiction is to address cases of plain and obvious instances of injustice. It is not https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1792/eng@2026-09-25 3

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by accident that neither the Constitution, the Appellate Jurisdiction Act or the Court of Appeal Rules provides for review of decisions of the Court outside the slip rule. If a party is aggrieved by the merits of a decision of the Court, the remedy is not an application for review, but an appeal to the Supreme Court, subject to satisfying the requirements of Article 163(4) of the Constitution. 17. In Benjoh Amalgamated Ltd. & Another v. Kenya Commercial Bank Ltd. [2014] eKLR, this Court expressed itself as follows regarding the limited and exceptional review jurisdiction: “ The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of nal resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and in doing so the principles to be had regard to are, on the one hand, the nality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the condence of the public in the system of justice. As shown in the various authorities, this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court).” (Emphasis added). 18. The same exceptionalism and limitation was emphasised in Standard Chartered Financial Services Ltd. & Another v. Manchester Outtters [2016] eKLR where the Court held as follows: “ 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 nality in litigation.” (Emphasis added). 19. Lastly, the Court cautioned as follows in Mukuru Munge v. Florence Shingi Mwawana [2016] eKLR: “ The residue power of the Court to reopen its decisions is therefore a circumscribed power to be exercised in exceptional cases. That power is not intended to circumvent the principle that, save in those cases where the Constitution allows an appeal to the Supreme Court, decisions of this Court are otherwise nal.” 20. Having carefully considered the application, we are satised that the application is a disguised appeal. The main contention of the applicant is that the Court proceeded on the mistaken belief that the applicant was the personal representative of the estate of Charity Nyawira Kailemia (deceased). As a matter of fact, that issue was settled by the subordinate Court and the High Court and cannot constitute a basis for review of the judgment of this Court. Neither can the claim that the Court failed to invoke Article 159 of the Constitution justify review of the Court’s judgment. Similarly, the applicant cannot ask the court to review its judgment on the basis that the judgment of the subordinate court was obtained by fraud or misrepresentation, while his application for review of that judgment was dismissed by the two courts below on account of his own laches. In all, the application is a barefaced invitation for the Court to reconsider the appeal. We apprehend that is not the purpose of the exceptional and circumscribed review jurisdiction of the Court. 21. Ultimately, we are satised that this application is utterly incompetent and the same is hereby struck out in its entirety, with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. K. M’INOTI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1792/eng@2026-09-25 4

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.................................... JUDGE OF APPEAL S. ole KANTAI .................................... JUDGE OF APPEAL A. 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/2026/1792/eng@2026-09-25 5

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