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Court of AppealStruck OutMiscellaneous Application (application dated 12th March 2025)· [2025] KECA 1232 (KLR)

Lydia Muthoni Kibagi v Daniel Nderi Njogu

Court of Appeal of Kenya
4 July 2025
1,346 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a review application because it cited the wrong legal rule, showing correct procedure is essential.

What this practically means

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Executive summary

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By an application dated 12th March 2025, Lydia Muthoni Kibagi sought review and setting aside of the Court of Appeal's judgment of 8th March 2024, a stay of its execution, and in the alternative dismissal of the appeal, on the ground that Karanja, JA had handled the originating matter (High Court Civil Case No. 34 of 2009 at Embu) and therefore ought not to have sat on the appeal panel, creating a perception of likelihood of bias. The respondent opposed the application, raising a jurisdictional objection that the application invoked Order 45 of the Civil Procedure Rules and Article 159 of the Constitution rather than the Court of Appeal Rules or the Appellate Jurisdiction Act, and noting the misleading title suggesting an appeal against the ELC judgment of Kerugoya delivered on 14th March 2019, an appeal already determined by the Court on 8th March 2024. Counsel for the applicant conceded that the relevant law and rules were not invoked but urged that the defect was curable under Article 159. The Court held that jurisdiction was not invoked: review of the Court of Appeal's own final judgments falls under Rule 1(2) of the Court of Appeal Rules, invoking its inherent and residual jurisdiction, which is limited, exercised cautiously and sparingly in non-appealable cases, and only where public interest and confidence in the justice system are served, as per the Supreme Court's decision in Nyutu Agrovet. The Court further found the application defective for failing to attach the impugned judgment and for bearing a misleading title. It struck out the application with costs to the respondent.

Key legal issues

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01

Invocation of the Court's jurisdiction

Holding

The application was fatally defective because it invoked Order 45 of the Civil Procedure Rules and Article 159 of the Constitution instead of Rule 1(2) of the Court of Appeal Rules, which alone governs review of the Court's own judgments.

Reasoning

The Court relies on properly cited legal provisions to understand the basis of an application and determine whether it has jurisdiction. Order 45 CPR governs review of decrees and orders in the High Court and courts below, not the Court of Appeal. Review in this Court falls under Rule 1(2) CAR, invoking its inherent and residual jurisdiction, which is exercised cautiously, sparingly, and only in non-appealable cases serving public interest. Counsel for the applicant conceded the relevant rules were not invoked but argued the defect was a technicality curable under Article 159, an argument the Court rejected.

p. 3
02

Additional defects in the application

Holding

Even if jurisdiction had been properly invoked, the application was defective for bearing a misleading title suggesting an appeal against the ELC judgment of 14th March 2019 (already determined on 8th March 2024) and for failing to attach the judgment sought to be reviewed and to identify the bench that delivered it.

Reasoning

A review applicant must attach the judgment sought to be reviewed so the Court can assess merit. The impugned judgment, being the Court's own judgment of 8th March 2024, was not attached, and nowhere did the applicant state the bench that heard the appeal, indicating the applicant did not know who determined the case. As a Court of record, the impugned judgment had to form part of the attachments to enable an informed ruling.

p. 3

Legal principles established

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  • An application for review in the Court of Appeal must be brought under Rule 1(2) of the Court of Appeal Rules, which invokes the Court's inherent and residual jurisdiction; Order 45 of the Civil Procedure Rules applies only to the High Court and subordinate courts and cannot found jurisdiction in the Court of Appeal.
  • The Court of Appeal's residual jurisdiction to review its own final judgments is limited and is exercised cautiously and sparingly, only in non-appealable cases and where it serves public interest and public confidence in the justice system.
  • Article 159 of the Constitution cannot cure a failure to invoke the correct legal provisions conferring jurisdiction.

Court orders

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  1. 1.The application dated 12th March 2025 is struck out
  2. 2.Costs of the application to the respondent
Jurisdiction invoked
The Court's residual review jurisdiction under Rule 1(2) of the Court of Appeal Rules; the applicant failed to invoke it, instead citing Order 45 of the Civil Procedure Rules and Article 159 of the Constitution, which the Court held did not confer jurisdiction.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lydia Muthoni Kibagi v Daniel Nderi Njogu", Case Analysis (2025). Miscellaneous Application (application dated 12th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1232/eng@2025-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.