Mbugua & 85 others v Ministry of Lands & 59 others (Civil Application E096 of 2023) [2025] KECA 1134 (KLR)
The bottom line
#Kenya's Court of Appeal refused to review its own ruling, confirming it will only reopen decisions in truly exceptional circumstances like fraud or nullity.
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 certificate of delay obtained belatedly qualifies as new and important evidence justifying review
- 2.Whether the applicants met the threshold for the exercise of this Court's residual jurisdiction to review its own decision
Key legal issues
#Whether the certificate of delay obtained after the reference qualified as new and important evidence for review
It did not; it was not undiscoverable, the explanation for its late procurement was shallow and unconvincing, and even on the applicants' own tabulation the remaining delay of about one year and two months was unexplained
The Court applied a tripartite test for new evidence at the appellate stage: the evidence could not have been reasonably obtained earlier, it must be relevant and credible, and its introduction would likely significantly affect the outcome. The applicants attributed the delay in obtaining the certificate to undefined 'differences' with the court registry, gave no details, and never raised the issue before the single Judge. Even accepting their own computation, the residual delay remained unexplained. Their reliance on Rule 84(1) proviso also failed since Rule 84(2) disqualified them from it.
Whether the residual jurisdiction of the Court to review its own decision was triggered
No; a decision on a reference under Rule 57 is final and departure is justified only in exceptional circumstances, none of which existed here
The Court reiterated the exceptional circumstances from Fredrick Otieno Outa vs. Jared Odoyo Okello: fraud or deceit, nullity, consent procured by mistake, or judgment based on repealed law or concealed statutory provision. Citing Kamau James Gitutho and Benjoh Amalgamated, it held the threshold requires injustice or miscarriage of justice eroding public confidence, and no appeal lying against the decision. The applicants were merely seeking a rehearing and a fresh decision, which the law does not permit.
Legal principles established
#- This Court's jurisdiction to review its own decisions is limited and is to be exercised only in exceptional circumstances
- The residual jurisdiction to reopen a concluded decision is set in motion only once the established threshold is met: injustice or miscarriage of justice, erosion of public confidence, and no appeal lying against the decision
- New and important evidence for review must have been undiscoverable despite due diligence, be directly relevant, and be potentially outcome-altering
- Delay in an application for extension of time need not fall within a set period but must be satisfactorily explained
Court orders
#- 1.The notice of motion dated 31st January 2025 is dismissed with costs to the 4th to 60th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal (full bench ruling on reference under Rule 57(1)(b), Court of Appeal Rules, 2022; original single Judge ruling by G. W. Ngenye, JA)
- Reference against ruling dated 12th April 2024; full bench ruling dated 22nd November 2024
- Jurisdiction invoked
- Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act; Articles 20, 48, 159(2)(d) and 259 of the Constitution; Rule 1(2) of the Court of Appeal Rules, 2022
Relief refused
#Review and/or setting aside of the full bench ruling of 22nd November 2024 and extension of time to file memorandum and record of appeal
The applicants failed to demonstrate that the belatedly obtained certificate of delay was new and important evidence, and failed to establish exceptional circumstances warranting exercise of the residual jurisdiction
Costs
Application dismissed with costs to the 4th to 60th respondents
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 find nothing to suggest that the applicant has demonstrated exceptional circumstances. The upshot is that the notice of motion dated 31st January 2025 lacks merit and it is hereby dismissed with costs to the 4th to 60th respondents.
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour.
the concept of "new and important evidence" for review purposes involves a stringent standard, focusing on evidence that was undiscoverable and potentially outcome-altering during the initial proceedings.
A review of a Judgment is a serious step and a court should be reluctant resort to it, except where a glaring omission or patent mistake or a grave error has crept into the judgment.
it is important to underscore that this Court’s jurisdiction to review its decisions is limited and is to be exercised only in exceptional circumstances.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & 85 others v Ministry of Lands & 59 others (Civil Application E096 of 2023) [2025] KECA 1134 (KLR)", Case Analysis (2025). Civil Application dated 31st January 2025 (arising from reference against Nakuru Civil Application ruling of 12th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1134/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.