Mwalembe & another v Freedom Ltd
The bottom line
#Kenya's Court of Appeal refused to review its own judgment, confirming that losing parties cannot relitigate appeals by disguising them as 'slip rule' corrections.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it merits review of the Judgment of this Court delivered on 21st February 2025
Key legal issues
#Whether the Court of Appeal can review paragraphs of its own judgment on the basis of an alleged accidental slip or omission
No. The slip rule jurisdiction exists to give effect to the court's intention, not to revisit findings already made; the applicants were in truth relitigating the appeal.
The Court traced its slip-rule jurisdiction to Rule 37 of the Court of Appeal Rules, 2022 and precedent establishing that the power to recall a judgment is narrowly confined to giving effect to the court's manifest intention where a matter was inadvertently omitted. Here the record showed the applicants' new advocates adopted the consent without objection, so nothing was overlooked. Granting review would alter the substance of the judgment, which is impermissible.
Whether a Notice of Change of Advocates filed before execution of a consent negates the consent's validity
No, where the advocates properly on record at adoption of the consent raised no objection, the consent binds the parties.
Although the Notice of Change of Advocates predated the consent, counsel Osoro, then properly on record, was present at the mention of 21st January 2020 and allowed the consent to be adopted as an order of the court without objection. The Court inferred he had his clients' instructions. Further, the previous counsel had not been notified of the change, and the delay of over two years in seeking redress undermined the applicants' case.
Legal principles established
#- The Court of Appeal's jurisdiction to review or correct its own judgments under the slip rule is limited to giving effect to the court's manifest intention and cannot be used to relitigate or sit on appeal over its own decision.
- The residual power to reopen a decided case is circumscribed and to be exercised only in exceptional circumstances.
Court orders
#- 1.The application dated 7th April 2025 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Mombasa (judgment under review, delivered at Malindi)
- Malindi Civil Appeal No. E022 of 2023
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Cap. 9; Rules 1(2), 37, 44 and 45(1) of the Court of Appeal Rules, 2022
Relief refused
#Review of paragraphs 30, 32 and 33 of the judgment of 21st February 2025
No plausible grounds for review were advanced; the application amounts to relitigating the entire appeal, which the Court cannot do
Finding that the applicants proved lack of authority of their erstwhile advocates to execute the consent
The new advocates on record adopted the consent without objection, indicating they had instructions
Correction of the Decree at paragraph 34 of the judgment under the slip rule
Review would change the landscape and character of the entire judgment; no accidental slip by the Court was demonstrated
Costs
The application is dismissed with costs to the respondent
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.
We cannot sit on appeal on our own decision.
the jurisdiction of this Court to review its judgments must be exercised in limited circumstances so as to "avert opening a flood gate for applications challenging the correctness of decisions.”
Consequently, we find that the applicants have not advanced any plausible grounds upon which we can review this Court’s 21st Judgment delivered on February 2025. Accordingly, the application is bereft of merit and is hereby dismissed with costs to the respondent.
Issues in the judgment
#Duplicate paragraph numbering: two consecutive paragraphs of the quoted impugned judgment are both numbered 32
Benjoh Amalgamated cited with two different citations in the same ruling
Garbled text in paragraph 22 conflating dates of the application and Odeny J's ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwalembe & another v Freedom Ltd", Case Analysis (2026). Civil Appeal (Application) E022 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1902/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.