Lydia Muthoni Kibagi v Daniel Nderi Njogu
The bottom line
#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
#Executive summary
#Key legal issues
#Invocation of the Court's jurisdiction
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.
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.
Additional defects in the application
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.
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.
Legal principles established
#- 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
#- 1.The application dated 12th March 2025 is struck out
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.