Baya & 2 others v Kitunga & 13 others (Civil Appeal E027 of 2022) [2026] KECA 643 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that review applications cannot be used to reopen a lost case; missing a judgment has real consequences.
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 learned Judge (Munyao, J.) acted within the law when he dismissed the 2nd appellant's application seeking to review, vary or vacate the judgment of 13th July 2017 and subsequent orders
- 2.Whether the 2007 JR judgment in Mombasa HCCC Miscellaneous Application No. 641 of 2005 amounted to discovery of new and important matter warranting review
- 3.Whether the delay in filing the review application was justified, including by the COVID-19 pandemic
- 4.Whether the respondents lacked locus standi to institute the suit for want of letters of administration
Key legal issues
#Whether the 2007 JR judgment constituted new and important matter justifying review
It did not. The 2nd appellant was the ex-parte applicant in the JR proceedings, knew of the 2007 ruling, and had the opportunity to produce it at trial in 2011; its introduction at review stage was an attempt to reopen the case.
The Court noted the ruling relied on was delivered on 13th February 2007, four years before the 2nd appellant testified at trial in 2011. As the ex-parte applicant in the JR proceedings, he could not claim the decision came as a surprise. Having failed to produce it at trial, he could not fault the trial court, and its late introduction was a back-door attempt to reopen the case.
Whether the delay in filing the review application was justified
It was not. The application was filed over three years after judgment; the 2nd appellant had sued in CMCC No. 12 of 2020 in March 2020, showing he knew of the judgment; counsel's failure to inform was not an excusable mistake.
The Court endorsed the trial judge's finding that counsel should have exercised due diligence and informed the client of the judgment, and that filing a fresh suit in March 2020 showed knowledge of the outcome. Citing Rajesh Rughani and Peter Muthoka, it held that inaction by counsel is not an excusable mistake, and the client has a duty to follow up on instructions.
Whether the respondents' alleged lack of locus standi warranted review
It did not. Lack of capacity to sue should have been raised as a preliminary point of law before the hearing; at review stage the court was functus officio and the only route was an appeal.
The Court agreed with Munyao, J. that locus standi is a pure point of law to be raised at the earliest opportunity. The trial court, having delivered judgment and with no appeal filed, could not revisit the issue on a review application; the proper remedy was an appeal, which the 2nd appellant chose not to pursue.
Whether the appellate court could interfere with the judge's exercise of discretion in refusing review
It could not. None of the established grounds for interfering with discretionary decisions - misdirection on law, misapprehension of facts, wrong considerations, or a plainly wrong decision - was made out.
The Court restated the Aga Khan Health Services criteria (drawing on Mrao Ltd) for interfering with discretionary decisions and found that Munyao, J. had properly applied the Section 80 CPA / Order 45 rule 1 CPR framework. No credible grounds for review having been advanced, the dismissal of the Motion was within the law.
Legal principles established
#- A review must not be used as an appeal in disguise; a party cannot reopen matters on merit simply because they are dissatisfied with the outcome.
- An error apparent on the face of the record for review purposes must be self-evident and not require elaborate argument; misconstruing a statute or reaching an erroneous conclusion of law is not a ground for review.
- Review under Order 45 rule 1 excuses only mistakes relating to documents that could not be obtained after the exercise of due diligence; lack of diligence disentitles a party to review.
- A client bears the consequences of counsel's failure to perform duties, and cannot simply accuse the advocate of failure to inform; the client has a duty to pursue his own matter.
- A challenge to a party's capacity to sue must be raised as a preliminary point of law before the hearing of the suit; it cannot be raised for the first time in a review application, the court then being functus officio.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The ruling of the ELC at Mombasa (Sila Munyao, J.) delivered on 13th January 2022 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa ELC Case No. 255 of 2005 (ruling dated 13th January 2022)
- Jurisdiction invoked
- First appeal from the Environment and Land Court in the exercise of its original jurisdiction, under rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Setting aside or varying the trial court's dismissal of the review application and reopening the 2017 judgment
The JR judgment was not new matter discoverable with due diligence; the review was an attempt to reopen the case by back door; locus standi could not be raised at review stage; delay was inexcusable
Costs
The appeal was dismissed with costs to the respondents.
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.
It is trite law that a review must not be couched as an appeal in disguise.
an attempt to introduce the ruling at the review level was no doubt an attempt to use back door means to re-open the case. By all means, the horse had bolted and left the stable!
Misconstruing a statute or other provision of law cannot be a ground for review.
It is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter.
Accordingly, we find that the appeal herein is without merit and the same is hereby dismissed with costs to the respondents. We thus uphold the ruling of the ELC at Mombasa (Sila Munyao, J.) (as he then was) delivered on 13th January 2022. It is so ordered.
Issues in the judgment
#The judgment gives inconsistent references to the trial Judge's name, variously 'Komingoi, J.' and 'Kimingoi, J.'
The judgment gives apparently anomalous citations with future-dated years, e.g. Nyong'o (2026) and Kiragu (2025), and the record refers to 'Mombasa ELC Case No. 255 of 2055'
The number of respondents is internally inconsistent: the Memorandum of Appeal lists 14 respondents with the 10th respondent apparently repeated as the 14th, while the decree lists 13 respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baya & 2 others v Kitunga & 13 others (Civil Appeal E027 of 2022) [2026] KECA 643 (KLR)", Case Analysis (2026). Mombasa Civil Appeal (from Mombasa ELC Case No. 255 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/643/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.