Mwiandi (Suing as the Legal Representative of the Estate of Mwiandi Kaimbiru) v Mukungi; Mwiandi (Applicant) (Civil Appeal (Application) 79 of 2019) [2025] KECA 1219 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that complaints about a single Judge's decision must follow the rule 57 reference procedure, not fresh review applications.
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 can entertain an application to vary, set aside or review a ruling of a single Judge delivered on 7th June 2024, and whether leave should issue for counsel to come on record post-judgment and for substitution and revival of the appeal
Key legal issues
#Proper procedure for challenging a decision of a single Judge under the Court of Appeal Rules, 2022
The correct remedy is a reference under rule 57, not a fresh substantive application seeking review or setting aside; a differently framed application cannot substitute for the prescribed procedure.
The Court examined rule 57, which requires a dissatisfied party to apply informally to the single Judge at the time of the decision or in writing to the Registrar within seven days, and prohibits additional evidence at the hearing by the full Court. The applicant instead filed a distinct motion seeking stay, setting aside or review. The Court held it could not grant relief outside the clear scheme of the rules, since the rules are clear on the steps to be taken where one is aggrieved by a decision of a single Judge.
Availability of review of the Court of Appeal's own decisions
Review of the Court's judgments or rulings is not provided for in the Court of Appeal Rules and is entertained only exceptionally, where finality would work injustice.
The Court traced the position from the pre-2010 era when the Court of Appeal, as the apex court, did not entertain applications for review, through the new constitutional dispensation. Even now such applications are rare, and the Court still lacks rules providing for review or setting aside of its own decisions. The applicable standard, drawn from Ndubi v Standard Limited, confines review to exceptional circumstances where the usual principle of finality could work injustice, which the applicant did not establish.
Whether the single Judge's ruling of 7th June 2024 contained an error on the face of the record warranting disturbance
No error on the face of the record was shown; the ruling declining substitution for want of the correct grant and for inordinate delay stood.
The single Judge had found that the grant annexed to the substitution application related to Gideon Mwiandi Itangi rather than to the deceased appellant Evangeline Kanyua Mwiandi, and that the application was brought after inordinate delay. The applicant contended the grant was the rightful one as it concerned the original defendant's estate. On reviewing the ruling, the full Court could discern no error on the face of the record and found the application before it devoid of merit.
Legal principles established
#- Where a party is dissatisfied with a decision of a single Judge in a civil matter, the prescribed route is a reference under rule 57 of the Court of Appeal Rules, 2022 - applied for informally to the judge at the time of the decision or by writing to the Registrar within seven days - and no additional evidence may be adduced at the hearing by the Court.
- Review or setting aside of the Court of Appeal's own judgments or rulings is not provided for in the Court of Appeal Rules and will be entertained only in exceptional circumstances where the principle of finality would otherwise work injustice.
Court orders
#- 1.The application for review/setting aside of the single Judge's ruling of 7th June 2024 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (single Judge, W. Karanja, JA)
- Ruling of 7th June 2024 in Civil Appeal No. 79 of 2019
- Jurisdiction invoked
- Rules 57 and 102 of the Court of Appeal Rules, 2022; Article 50(1) of the Constitution and sections 1A, 1B and 80 of the Civil Procedure Act invoked by the applicant but held inapplicable
Relief refused
#Leave for a firm of lawyers to come on record post-judgment; variation/setting aside/review of the ruling of 7th June 2024; substitution of the applicant and revival of the appeal
The rules provide a specific reference procedure under rule 57 for a party aggrieved by a single Judge's decision, which the applicant did not follow; review is exceptional and the Court found no error on the face of the record
Costs
Costs of the application awarded to the respondent
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.
Reviews were not provided for in the Court of Appeal Rules. They were not to be thought of as commonplace exercises to be sought as a knee-jerk response to decisions of the court that did not fiatter a party's fancy.
We are unable to grant the application as the rules are clear on the steps to be taken where one is aggrieved by the decision of a single Judge.
In the event that the applicant intended that the application be a reference to the full Court under rule 57 of the rules, having looked at the ruling of the single Judge, we cannot see any error on the face of the record it has no merit and we dismiss it with costs to the respondent.
Issues in the judgment
#The judgment recites that the applicant's supporting affidavit was sworn by Kinyua Gideon Mwiandi, who 'says that he is the applicant', while the applicant is identified as Evangeline Kanyua Mwiandi (since deceased per the history); the identity of the actual applicant before the Court is therefore unclear on the face of the judgment.
The applicant's motion sought revival of Civil Appeal No. 79 of 2019, which the respondent stated had been marked as abated on 6th November 2023; the judgment does not record the status of that appeal in its orders, addressing only the ruling of 7th June 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwiandi (Suing as the Legal Representative of the Estate of Mwiandi Kaimbiru) v Mukungi; Mwiandi (Applicant) (Civil Appeal (Application) 79 of 2019) [2025] KECA 1219 (KLR)", Case Analysis (2025). Civil Appeal No. 79 of 2019 (Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1219/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.