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Court of AppealDismissedAppeal from the Land and Environment Court at Kakamega (case number not stated in the judgment)

Songole & another v Kwenya & another (Civil Appeal 211 of 2019) [2025] KECA 1778 (KLR)

Court of Appeal of Kenya
24 October 2025
2,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that you cannot use a review application to re-argue a lost case — errors must be obvious, and real complaints belong in an appeal.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Omondi, JJA) dismissed an appeal against the ruling of Matheka, J. of the Land and Environment Court at Kakamega, which had on 23rd July 2019 rejected the appellants' application for review of the judgment of Mukunya, J. of 11th May 2016 that had found their suit res judicata. The review application had alleged an error apparent on the face of the record, namely the failure of the purchaser of the suit property to obtain Land Control Board consent, plus harshness of the costs award and sufficient cause. Before the Court of Appeal, counsel for the appellants, pressed by the bench, conceded that the alleged error was not manifest on the face of the record and that her real complaint was an error of assessment by the judge. The Court held that the alleged error was not only unapparent but non-existent, since Mukunya, J.'s judgment expressly recorded that Khamoni, PM had dealt with the consent issue in his ruling of 18th August 1987. Applying Order 45 rule 1 of the Civil Procedure Rules, section 80 of the Civil Procedure Act and the settled authorities (including National Bank of Kenya v Ndungu Njau and Paul Mwaniki v NHIF), the Court affirmed that review is impermissible without a glaring, self-evident error; questioning the correctness of a decision, or asserting a judge could have taken a different view, lies on appeal, not review. The Court found no basis to interfere with the learned Judge's discretion under the Shah v Mbogo principles and dismissed the appeal with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the contention about the Land Control Board consent was addressed by Mukunya, J.
  2. 2.Whether Matheka, J. had a basis upon which to review the court's decision

Key legal issues

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01

Whether there was a mistake or error apparent on the face of the record warranting review

Holding

There was none. The alleged error (failure to obtain land control board consent) was neither self-evident on the record nor in fact existent, as Mukunya, J. had expressly addressed the consent issue by reference to Khamoni PM's ruling of 18th August 1987.

Reasoning

The Court applied Order 45 rule 1 and the consistent line of authority requiring an error on review to be conspicuous upon a cursory look at the record. Counsel for the appellants conceded the error was not manifest. The Court found the alleged error was not only unapparent but non-existent, the consent issue having been dealt with by Khamoni, PM and again by Mukunya, J. What remained was a challenge to the correctness of the decision, which lies on appeal, not review.

p. 5
02

Whether Matheka, J. erred in dismissing the application for review

Holding

No. She correctly found no error apparent on the face of the record and no sufficient reason for review; reviewing the decision would have required her to sit in an appellate posture over a decision of a concurrent court.

Reasoning

The Court reiterated that interference with judicial discretion is only warranted where the judge misapprehended the facts, misdirected herself on law, took into account irrelevant matters, failed to consider relevant ones, or was plainly wrong. None was established. The respondents correctly argued that the appellants were attempting to re-litigate determined issues, contrary to the objective of review, and that a review on 'sufficient reason' must be analogous to the specified grounds.

p. 5

Legal principles established

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  • An error apparent on the face of the record must be self-evident and require no elaborate argument; a complaint about the correctness of a decision, or an error requiring lengthy reasoning, is a ground for appeal, not review.
  • A lower court cannot review its own decision or that of a concurrent court by reassessing the merits; the proper remedy for an erroneous conclusion is an appeal.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Land and Environment Court (High Court) at Kakamega
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (statutory appellate jurisdiction; specific provision not stated in the judgment)

Relief refused

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Setting aside the ruling of Matheka, J. dismissing the application for review, and reinstatement of the suit

There was no error apparent on the face of the record and no sufficient reason for review; the alleged error had already been addressed by Mukunya, J., and the complaint was at best a matter for appeal, not review

p. 5

Costs

The appeal was dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, this appeal is without merit and we dismiss it with costs.
p. 5Final orders - dismissal of appeal
Review is impermissible without a glaring omission, evident mistake or similar ominous error.
p. 4Threshold for review for error apparent on the face of the record
Misconstruing a statute or other provision of law cannot be a ground for review.
p. 5Erroneous conclusion of law is not a ground for review
We accordingly cannot fault the learned Judge as there was no basis upon which she would have exercised the power of review without doing violence to the applicable principles.
p. 5Affirmation of the High Court's refusal to review
An application for review can only be allowed on very strong grounds particularly where it can amount to re-opening an application.
p. 3Review as a remedy against re-opening determined matters

Issues in the judgment

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minor

The judgment contains apparent typographical/transcription errors: dates are inconsistent (paragraph 3 refers to 'orders of 13th December 1995' while the opening paragraph refers to '13th December 1985'; the quoted judgment of Mukunya, J. in paragraph 19 refers to 'section 143 (1) of Land Control Act' though the Land Control Act has no such provision as pleaded elsewhere); the appellants' names do not appear in the judgment text and the case number of the appeal before this Court is not stated.

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, "Songole & another v Kwenya & another (Civil Appeal 211 of 2019) [2025] KECA 1778 (KLR)", Case Analysis (2025). Appeal from the Land and Environment Court at Kakamega (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1778/eng@2025-10-24

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