Masinde & another v Betting Control Licensing Board & 5 others; Ndungu (Proposed Interested Party) (Civil Application E351 of 2022) [2025] KECA 685 (KLR)
The bottom line
#Kenya's Court of Appeal reopened its own decision because of alleged fraud and forgery, allowing a former director back into the case to be heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to review its own ruling of 10th February 2023 dismissing the application for joinder
- 2.Whether there was inordinate delay in filing the review application
- 3.Whether new matters of fraud, an allegedly illegal consent, an expired injunction and unfiled company resolutions warrant review of the ruling
- 4.Whether Paul Wanderi Ndung'u ought to be joined as an interested party to the appeal
Key legal issues
#Residual jurisdiction to review the Court's own decision
The Court has residual jurisdiction, to be invoked with circumspection, to reopen decided matters in cases of fraud, bias or other injustice notwithstanding the finality principle.
Relying on Benjoh Amalgamated, the Court held that a court of final resort has residual jurisdiction to reopen decided matters where fraud, bias or injustice is shown. The allegations of a fraudulent order, an illegal consent and infringement of the right to be heard satisfied the justice principle and outweighed the finality principle, so jurisdiction existed despite doubts about appealability of the ruling.
Inordinate delay in seeking review
There was no inordinate delay because the applicant learned of the illegal compromise of the appeal on 5th November 2024 and filed the review within two months.
Milestone argued the ~20-month gap between the ruling and the review application was inordinate. The Court accepted the applicant's explanation that he only learnt on 5th November 2024 that the appeal had been settled by an illegal consent; the period from that discovery to filing on 2nd January 2025 was less than two months and not inordinate.
Expulsion from the company and locus standi
The question of the applicant's alleged expulsion as a shareholder requires proper interrogation, which is only possible if he is joined as a party.
The earlier ruling had held that the applicant lacked locus standi because of his expulsion by board resolution. On review, the Court noted he had filed a current CR 12 proving continued shareholding, and that the special resolutions expelling him had not been filed within the 14 days required by section 27 of the Companies Act. The validity of the expulsion therefore required investigation with him as a party.
Effect of the expired injunction on the joinder decision
The injunction relied on in the earlier ruling was interim, had lapsed by operation of law for want of extension, and that averment was unchallenged.
The Court had rested its denial of joinder partly on the injunction issued by Mabeya, J. on 12th January 2023. On review, the Court accepted the applicant's unchallenged assertion that the orders were interim in nature and had lapsed by operation of law as they had not been extended, removing that ground for refusing joinder.
Legal principles established
#- The Court of Appeal has residual jurisdiction to review its own decisions in cases of fraud, bias or other injustice, to be invoked with circumspection, balancing the finality principle against the justice principle.
- Interim orders of injunction lapse by operation of law if not extended and cannot found a finding of lack of locus standi once expired.
- A party cannot be prejudiced or affected by proceedings without being afforded an opportunity to be heard; the right to be heard is a valued right under Article 50.
Court orders
#- 1.The Court's ruling dated 10th February 2023 is reviewed and set aside
- 2.Substituted therefor is an order allowing the Notice of Motion dated 20th December 2022 by Paul Wanderi Ndung'u seeking to be joined as an interested party to the proceedings
- 3.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Ruling of 10th February 2023 in Civil Appeal No. E671 of 2022
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Articles 47, 48 and 50 of the Constitution (residual jurisdiction of the Court of Appeal to review its own decisions)
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.
we are satisfied that there are sufficient reasons to warrant a review of this Court's ruling dated 10th February 2023
Consequently, we hereby review and set aside the said ruling and substitute therefor an order allowing the Notice of Motion dated 20th December 2022 by Paul Wanderi Ndung'u seeking to be joined as an interested party to these proceedings
it has residual jurisdiction to do so in cases of fraud, bias or other injustice with a view to correct the same
the right to be heard is a valued right and it would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard
Regarding costs, we order that each party bears its own costs of this application
Issues in the judgment
#The judgment refers to the applicant learning of the illegal consent on both 5th November 2024 and 5th December 2024, an internal inconsistency in the dates.
The judgment cites Civil Appeal No. E671 of 2022 and E061 of 2022 inconsistently when describing the consent discovery, and there are two differing references to the appeal number in the delay discussion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masinde & another v Betting Control Licensing Board & 5 others; Ndungu (Proposed Interested Party) (Civil Application E351 of 2022) [2025] KECA 685 (KLR)", Case Analysis (2025). Civil Application No. E671 of 2022 (Review Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/685/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.