M'Rutere (Decesaed) (Substituted by Rose Njiru the legal representative of his Estate) v Kathurima (Civil Appeal (Application) 232 of 2018) [2025] KECA 2132 (KLR)
The bottom line
#The Court of Appeal refused to reopen Rose Njiru's dismissed land appeal, confirming its judgments can only be reviewed in very exceptional circumstances.
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 of Appeal has jurisdiction to review its own judgment dismissing the applicant's appeal
- 2.Whether the applicant demonstrated exceptional circumstances, such as error in the judgment or new and important evidence, warranting review
Key legal issues
#Scope of the Court of Appeal's jurisdiction to review its own judgments
Review of the Court of Appeal's own judgments is available only in very exceptional circumstances; the Court has a residual jurisdiction to correct errors of law occasioning real injustice, exercised cautiously.
Before the 2010 Constitution the Court of Appeal was the apex court and its judgments were final, subject only to the slip rule. With the Supreme Court's creation it is no longer final, but review remains exceptional. In Benjoh Amalgamated the Court reconciled the finality principle with the justice principle, recognising a residual review jurisdiction to correct errors of law that occasion real injustice or miscarriage of justice, exercised cautiously and in the public interest.
Whether the applicant satisfied the criteria for review
The applicant failed: no error in the judgment was identified and no exceptional circumstance was shown.
The applicant relied on claimed newly discovered evidence concerning a third party's claim over the suit land in a separate suit, and on impending execution by the respondent. The Court found that none of the exceptional circumstances recognised in the case-law - such as error in the judgment - was demonstrated, and the application disclosed no basis for disturbing the dismissed appeal.
Legal principles established
#- The Court of Appeal, not being the final court, has only a residual jurisdiction to review its own decisions, exercisable cautiously in exceptional circumstances to correct errors of law occasioning real injustice.
- After passing judgment, a court becomes functus officio and cannot revisit the judgment on the merits save as provided by law.
Court orders
#- 1.The notice of motion seeking review of the judgment of 22nd September 2023 is dismissed
- 2.No order on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (full bench decision under review)
- Jurisdiction invoked
- Articles 40 and 159(2) of the Constitution of Kenya; sections 3A, 3B and 4 of the Appellate Jurisdiction Act; Rules 5(2)(b) and 18(1) of the Court of Appeal Rules 2010; section 5 of the Court of Appeal (Organization and Administration) Act; section 80 of the Civil Procedure Act
Relief refused
#Review and setting aside of the judgment and court order dated 22nd September 2023
The applicant did not demonstrate any error in the judgment or the exceptional circumstances required for review; the Court remains functus officio on the merits
Allowance of the appellant's appeal
It was contingent on review of the judgment, which was refused
Costs
We make no order on costs.
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.
In the event this is not a suitable case for review and we find no merit in the motion which we hereby dismiss. We make no order on costs.
With the creation of the Supreme Court of Kenya this is not the final court but even then review of judgments of this Court is allowed only in very exceptional circumstances.
This Court will be reluctant to invoke its residual jurisdiction of review where, as here, there is laches or where legal rights of innocent third parties have vested during the intervening period which cannot be interfered with without causing further injustice.
Issues in the judgment
#The name of the respondent is not stated in the ruling itself; it is inferred from the third-party suit 'John Kimathi v John Nicholas Muthuri' referenced as concerning the same subject land.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Rutere (Decesaed) (Substituted by Rose Njiru the legal representative of his Estate) v Kathurima (Civil Appeal (Application) 232 of 2018) [2025] KECA 2132 (KLR)", Case Analysis (2025). Notice of motion following appeal dismissed on 22nd September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2132/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.