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Court of AppealDismissedNot stated in the judgment (motion dated 7th September 2023 in the appeal between Zakayo Waswa and Miletus Charles Nyongesa)· [2025] KECA 1777 (KLR)

Waswa v Nyongesa (Civil Appeal (Application) 49 of 2018) [2025] KECA 1777 (KLR)

Court of Appeal of Kenya
24 October 2025
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to reopen a land judgment, confirming that a lawyer's neglect is never a valid reason to revive a decided case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Asike-Makhandia, H.A. Omondi and A.O. Muchelule, JJ.A) on the respondent's motion dated 7th September 2023, brought under Rule 102(2) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act, seeking stay of execution of the Court's judgment of 23rd June 2023, setting aside of that judgment, and a rehearing of the appeal. The underlying appeal had reversed the High Court at Bungoma (Makunya, J.), which had struck out the appellant Zakayo Waswa's claim that Miletus Charles Nyongesa fraudulently acquired two land parcels as time-barred; the appellate court held the suit was not time-barred, found fraud established, declared the appellant the lawful owner of parcel West Bukusu/North Mateka/77 and ordered its transfer back to him. The respondent, who was absent and unrepresented at the hearing, blamed non-service. The Court found the record showed his counsel was duly served by email, attended case management, and ignored reminders; his neglect amounted to professional misconduct, and the respondent, aware of the appeal since 2018, had not been vigilant. Applying Benjoh Amalgamated, Standard Chartered Financial Services and the Supreme Court's Outa decision, the Court held its power to review its own judgments is confined to exceptional circumstances none of which was met, and that the finality principle should bring conclusiveness to the land dispute. The application was dismissed with costs as printed in the judgment.

Key legal issues

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01

Scope of the Court of Appeal's power to review its own judgment

Holding

The Court has only residual, exceptional jurisdiction to review its own decisions, as recognised in Benjoh Amalgamated and Standard Chartered Financial Services and delimited by the Supreme Court in Outa.

Reasoning

Relying on Benjoh Amalgamated, Standard Chartered Financial Services and the Supreme Court's decision in Outa, the Court held that review of its own judgments is confined to exceptional circumstances: fraud or deceit, nullity, mistaken belief as to consent, or judgment based on repealed law or a deliberately concealed statutory provision. None was shown here; the complaint was mere neglect by counsel and inattention by the litigant.

p. 3
02

Service on counsel and diligence of the litigant

Holding

The registry did all that the law required; the record showed counsel attended case management and was emailed the hearing notice and reminders, and the respondent, aware of the appeal since 2018, sat on it for over four years.

Reasoning

The Court accepted the record that counsel attended case management and was reminded by email to file submissions and served with the hearing notice at the correct email address. Counsel's failure was characterised as professional misconduct, with the respondent having recourse elsewhere. The respondent's four-year inaction disentitled him to the court's indulgence.

p. 3
03

Finality principle in concluded land disputes

Holding

The finality principle should prevail to bring conclusiveness to the land dispute between the parties.

Reasoning

The Court weighed the interests of justice and held that the conclusiveness of judgments must be upheld where a party seeks to reopen a concluded appeal through negligence rather than any of the recognised exceptional grounds.

p. 3

Legal principles established

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  • The Court of Appeal has residual inherent jurisdiction to review its own decisions only in exceptional circumstances, as delimited by the Supreme Court in Outa: fraud or deceit, nullity, consent procured by mistake, or judgment based on repealed/concealed law
  • Where the registry duly serves counsel with notice of case management and of the hearing (including by the counsel's own email address), a litigant who fails to follow up on his appeal for years cannot invoke the court's review jurisdiction; mistakes of counsel are not visited on the court's finality

Court orders

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  1. 1.The respondent's notice of motion dated 7th September 2023 seeking stay of execution, setting aside of the judgment and rehearing of the appeal is dismissed
  2. 2.Costs of the application awarded as stated in the final order

Authorities

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Legislation

  • Court of Appeal RulesRule 102(2)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B

Cases cited (3)

  • Benjoh Amalgamated Limited -vs- Kenya Commercial Bank Limited
    [2014] eKLR
  • Standard Chartered Financial Services Ltd & Another -vs- Manchester Outfitters (Suiting Division) Ltd & 2 Others
    [2017] eKLR
  • Fredrick Otieno Outa -vs- Jared Odoyo Okeyo & 3 Others
    [2017] eKLR
On appeal from
High Court of Kenya at Bungoma
Jurisdiction invoked
Rule 102(2) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act (inherent power of the Court of Appeal to review its own judgment)

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, "Waswa v Nyongesa (Civil Appeal (Application) 49 of 2018) [2025] KECA 1777 (KLR)", Case Analysis (2025). Not stated in the judgment (motion dated 7th September 2023 in the appeal between Zakayo Waswa and Miletus Charles Nyongesa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1777/eng@2025-10-24

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