Ethics and Anti Corruption Commission v Kenya Broadcasting Corporation & 3 others (Civil Application E060 of 2023) [2025] KECA 873 (KLR)
The bottom line
#Kenya's Court of Appeal set aside its own final judgment over disputed public land, allowing the anti-corruption watchdog to present fresh investigative evidence.
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 applicant has met the threshold to warrant the re-hearing of the appeal, and whether new evidence should be adduced
- 2.if the answer to the foregoing is in the affirmative, whether the applicant should be joined as an interested party
- 3.consequently, whether we should set aside this Court's judgment delivered on 7th March 2019
Key legal issues
#Residual jurisdiction to re-open a concluded appeal
The Court exercised its residual jurisdiction to re-open its own concluded judgment because the matter touched on preservation of public land and involved new evidence obtained through investigations that was unavailable at trial.
The Court reaffirmed the Benjoh line of authority that its residual jurisdiction is exceptional and exercised sparingly, but found the public-interest nature of the dispute — the impugned alienation of land reserved for public use — and the inability of the parties to obtain the investigative evidence at trial justified its exercise. The application was neither frivolous, vexatious, nor an abuse of process, and the issues deserved close judicial scrutiny.
Admission of additional evidence on appeal
Additional evidence is a matter of judicial discretion, considered separately from re-hearing, and was justified here because the evidence could not have been obtained with reasonable diligence absent EACC investigations; it is to be taken before the trial court, limited to the investigation report.
Applying the Supreme Court's Mohamed Abdi Mahamud principles and rule 31(1)(b) of the Court of Appeal Rules, 2022, the Court found the evidence was directly relevant, credible, not voluminous, could not have been obtained by due diligence, and did not seek to fill gaps in a losing party's case. As an appellate court, it directed that oral evidence be taken at the ELC where it could be tested by cross-examination.
Joinder of the EACC as an interested party
The EACC satisfied the criteria for joinder: it has a clearly identifiable public-interest stake, its presence enables complete adjudication, and non-joinder would prejudice the public interest it represents.
Relying on the Supreme Court's definition of an interested party in Trusted Society of Human Rights Alliance v Mumo Matemo and this Court's criteria in Muungano Wa Wanavijiji, the Court held that the EACC, established under Article 253 of the Constitution with investigative powers under the Ethics and Anti-Corruption Commission Act, had a proximate, not merely peripheral, interest warranting joinder.
Legal principles established
#- The Court of Appeal has residual jurisdiction to re-open and re-hear a concluded matter where the interest of justice demands, exercisable only in exceptional situations where the need to obviate injustice outweighs the principle of finality in litigation.
- Once a final judgment has been entered and a decree issued, the functus officio doctrine bars merit-based re-engagement with the case, subject only to the slip rule under section 99 of the Civil Procedure Act.
- An investigative body such as the EACC, entrusted with protecting public property and acting on a request to investigate, is not a busybody or peripheral party and may be joined as an interested party in proceedings touching on public land.
Court orders
#- 1.The Judgment of this Court delivered on 7th March 2019 be and is hereby set aside
- 2.The matter be remitted to the trial court (the ELC) at Mombasa for the purpose of taking new evidence
- 3.The applicant be joined as an interested party in the trial court, and be at liberty to adduce additional evidence under rule 31(1)(b) of the Court of Appeal Rules, 2022
- 4.The new evidence shall be limited to the investigation report relating to the suit property
- 5.Each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa Environment and Land Court Case No. 282 of 2013
- Jurisdiction invoked
- Residual jurisdiction of the Court of Appeal under section 3A of the Civil Procedure Act and rule 31(1)(b) of the Court of Appeal Rules, 2022 to re-open a concluded appeal in exceptional circumstances
Relief refused
#Taking of additional evidence orally before this Court with cross-examination of witnesses
This being an appellate court, oral evidence is best taken by the trial court where witnesses may be cross-examined and re-examined
Costs
this being an application made in public interest, we hereby order that each party shall bear its own costs of the application
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.
that the Judgment of this Court delivered on 7th March 2019 be and is hereby set aside
that the matter be remitted to the trial court (the ELC) at Mombasa for the purpose of taking new evidence
this being an application made in public interest, we hereby order that each party shall bear its own costs of the application
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 finality in litigation
The doctrine bars merit-based decisional reengagement with the case once a final judgment has been entered and a decree therefrom issued.
the applicant has made out a case that warrants its joinder as an interested party in the suit
Issues in the judgment
#The judgment states that the Court of Appeal judgment was delivered on 7th March 2019 in most passages, but paragraph 37 refers to 'a judgement delivered on 7th May 2019'
Numbering of the paragraphs on review grounds appears irregular, with paragraph 57 breaking mid-sentence and duplicating the numbered lettering
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-corruption Commission v Kiptoo & 3 others (Environment and Land Case E009 of 2025) [2026] KEELC 4327 (KLR)[2026] KEELC 4327 (KLR)30 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti Corruption Commission v Kenya Broadcasting Corporation & 3 others (Civil Application E060 of 2023) [2025] KECA 873 (KLR)", Case Analysis (2025). Application dated 11th July 2023 in Mombasa Civil Appeal No. 82 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/873/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.