Njogu v Kibagi

3. THAT the Court be pleased to review its judgment of 8th March 2024 and therefore set aside the said judgment and order that the appeal herein be heard a fresh before a dierent panel of judges. 4. THAT in the ALTERNATIVE the Court be pleased to nd that there is an error on the judgment and record and thereafter dismiss the appeal herein. 5. THAT costs to the applicant.” 4. In grounds in support of the Motion and in her supporting adavit the applicant says amongst other things that there is sucient reason to warrant a review and setting aside the judgment because W. Karanja, JA. handled the case at the High Court of Kenya at Embu and should not have sat in the appeal; that there was a likelihood of bias; that there is an error in the judgment not supported by evidence and that a dierent panel of Judges should hear the appeal afresh. The applicant says that the respondent has threatened to move into her land and demolish houses; that the respondent has commenced execution of the judgment; that delay in bringing the application was occasioned by her application which was struck out. She has led a supplementary adavit where she depones that she was punished for contempt of court at the High Court; that she and her family will suer irreparably if the application is not granted. 5. In a replying adavit the respondent terms the application an abuse of the process of the court; that the application does not meet the threshold for review of a judgment of this Court. 6. The Motion came up for hearing before us on 25th November, 2025 where learned counsel Ms. Mugambi Njeru appeared for the applicant while learned counsel Mr. Masore Nyangau appeared for the respondent. 7. In a highlight of written submissions counsel for the applicant submitted that the earlier application was struck out on a technicality and was not considered on merit; that counsel then on record for the applicant did not point out to the court that one of the Judges in the panel had handled the matter at the High Court; that the judgment had an error where it stated that the respondent occupied half of the disputed land; that the respondent had never occupied the land. 8. Counsel for the respondent in a highlight of written submissions pointed out that W. Karanja, JA. had only handled an interlocutory application in the suit at the High Court of Kenya, Embu. Counsel submitted that the applicant had admitted in her defence and counter-claim that the respondent occupied part of the disputed land. 9. We have considered the application, the submissions made and the law. 10. This Court in the said judgment considered the evidence that had been given at ELC and found that the respondent was in occupation of half of the disputed land and was entitled to the portion which he occupied. 11. This Court was the nal court in the period before the enactment of the Constitution of Kenya, 2010. That Constitution created the Supreme Court of Kenya which is the apex Court. Parties may now approach that Court if they meet the requirements entitling them to be heard by that Court. 12. This Court has residual power to review its judgment but that is a power which is to be exercised cautiously as has been held in various decision such as Benjoh Amalgamated Limited & Another vs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1957/eng@2026-09-25 2

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Kenya Commercial Bank Limited & Another [2014] eKLR where parameters for review were set out as follows: “ The case-law on the subject of review jurisdiction shows that two principles seem to be in competition. There is the “principle on nality” of litigation on the one hand which does not support review and there is “the justice principle” on the other hand which favours limited review predicated on the basis that the object of litigation is to do justice... ... It is our nding that this Court not being the nal court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public condence in the administration of justice. This is jurisdiction that has to be exercised cautiously and only where it will serve to promote public interest and enhance public condence in the rule of law and our system of justice. 62. 13. 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." The Supreme Court of Kenya gave a general guidance discouraging review of issues on merit post judgment in Menginya Salim Murgani vs. Kenya Revenue Authority [2014] eKLR where it stated that: “ (33) It is a general principle of law that a Court after passing Judgment, becomes functus ocio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law." 14. Looking at the application before us and all material presented we are of the respectful opinion that the same does not meet either the nality principle or the justice principle at all. There is nothing to review. 15. The applicant has not also satised the principles on which stay of the judgment could be granted. There is a nal judgment of this Court and the respondent is entitled to execute it. The application has no merit and we dismiss it with costs to the respondent. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI ................................... JUDGE OF APPEAL NYAMWEYA ................................... JUDGE OF APPEAL ALI – ARONI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1957/eng@2026-09-25 3

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1957/eng@2026-09-25 4

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