https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1396

Mwangi v Karocha (Civil Appeal (Application) E123 of 2022) [2026] KECA 1396 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1396 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E123 of 2022 S ole Kantai, A Ali-Aroni & AO Muchelule, JJA July 3, 2026 Between Paul Waiganjo Mwangi Applicant and Maingi Karocha Respondent (Being an application for review of the ruling of the Court of Appeal in Nyeri (Karanja, Kimaru, Muchelule, JJ.A.) delivered on 2nd February 2024 in NYR. E123 OF 2022 Civil Application E123 of 2022, Environment and Land Appeal E4 of 2020 ) Ruling 1.A brief background of the matter is that the applicant was aggrieved by the judgment of the Environment and Land Court (ELC), which had affirmed the judgment of the Magistrate's Court that found that L.R. No. Mahiga/Kamoko/1409 (hereinafter referred to as the suit property) belonged jointly to the applicant and his brother, the respondent. The two were children of Gladys Wamucii Mwangi (deceased). In the suit, the applicant sought a declaration that he was the sole owner of the land, claiming that his brother had relocated to Laikipia during their mother's lifetime. 2.The applicant, acting in person, was dissatisfied with the decision of the ELC and filed a notice of appeal to this Court dated 24th January 2023, seeking a stay of execution of the decree pursuant to the judgment delivered by the ELC on 27th January 2022, pending the hearing of his intended appeal. In the alternative, an order of injunction to restrain the respondent from interfering with his ownership and occupation of the suit property pending the intended appeal. The applicant argued that failure to grant the stay would render the intended appeal nugatory and cause him irreparable damage. 3.The respondent opposed the application, stating that the ELC's judgment and decree had already been executed by sub-dividing the suit property. Therefore, granting the orders would be in vain. 4.The Court considered the application and found that the intended appeal was arguable. On the nugatory aspect, the Court was not satisfied that the intended appeal would be rendered nugatory if the stay was not granted, as the impugned judgment had already been executed, and the suit property was at the time registered in the joint names of the applicant and respondent. The Court was of the view that if the applicant succeeds on appeal, the transfer in joint names could be reversed. Furthermore, as joint proprietors, neither brother could dispose of the suit property without the other's consent. The Court concluded there was no danger of the land being disposed of in any event. Consequently, the application was found to lack merit. 5.Aggrieved by the ruling of this Court, the applicant filed a notice of motion dated 4th September 2024 under section 1A, 1B, 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, seeking a review or setting aside of the Court’s ruling and consequential orders issued thereon. In its place, the applicant sought an order maintaining the status quo pending the hearing and determination of the application. 6.The application is based grounds on the face of it and the applicant’s affidavit dated 4th September 2024, claiming that in the ruling of 2nd February 2024, the Court dismissed the applicant’s application dated 24th January 2023 on account of an apparent error on the face of the record as it failed to consider crucial evidence placed before it that could have influenced the decision differently. Specifically, the applicant points out that he submitted all necessary documents in support of his application, whereas the respondent did not provide any documents to contest the applicant’s claims or to deny the assertion that the suit property was registered jointly. 7.Additionally, the applicant argues that the Court overlooked documents that indicated a transfer of the suit property from the respondent to him on 13th October 2010 at Othaya Land Control Board as a gift absolute. The applicant also notes that the respondent claimed to have divided the land into two portions, a claim confirmed by a copy of the Green Card included in the applicant's supporting documents. The applicant further asserts that the error on the face of the record is material and warrants a review of the Court’s earlier ruling. 8.He deposes further that the prayers sought in the application dated 24th January 2022 would not have caused any prejudice to the respondent, which is a factor the Court should have taken into account. Yet he will suffer significant prejudice if his current application is not granted. He is willing to comply with the Court's timeline requirements. 9.In his submissions dated 23rd December 2024, the applicant, who acts in person, submits that both parties had applied for and received consent from the Land Control Board on 14th October 2009 for the subdivision of the property Mahiga/Kamogo/409. The same was subdivided into Mahiga/Kamogo/1408 & Mahiga/Kamogo/1409. He states further that on 13th October 2010, both parties appeared before the Othaya Land Control Board, where the Mahiga/Kamoko/1409 was transferred from the respondent to him absolutely as a gift. He argues that, according to the Green Card, the land remains divided into two portions, and therefore, the respondent has no authority over the said land, as it was already transferred to him as a gift. The applicant further states that he intervened on 12th May 2010 to stop the respondent from selling his share (Mahiga/Kamoko/1408) until Mahiga/Kamoko/1409 was transferred to him. 10.The applicant asserts further that the Court erred by stating that the suit property was jointly registered in his name and that of the respondent. He contends that the current case is not about ownership of the suit property; rather, it seeks to compel the respondent to sign the necessary documents, as the land dispute was concluded in 2009 with the A.C.C. Nyeri South. 11.There was no response from the respondent. 12.We have carefully considered the application before us, the supporting affidavit, and the submissions filed by the applicant. 13.From the outset, it is noteworthy that the application is not opposed. However, as has been stated time without number, the absence of opposition does not ipso facto entitle an applicant to the orders sought. The Court has to be satisfied that the application is meritorious and meets the requisite threshold. 14.The applicant seeks, principally, a review and/or setting aside of this Court’s ruling delivered on 2nd February 2024, and we believe interim orders maintaining the status quo pending determination of the intended appeal and not application as suggested.This Court, in National Bank of Kenya Ltd vs. Ndungu Njau [1997] eKLR, stated as follows:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it”.Similarly, in Benjoh Amalgamated Ltd & Another vs. Kenya Commercial Bank Ltd (Civil Application 16 of 2012) [2014] KECA 872 (KLR), the Court held:“ 26.The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgement of frailties of human nature and sometimes possibility of perversion that may lead to miscarriage of justice. In some jurisdictions, courts have felt the need to cull out such power in order to overcome abuse of process of court or miscarriage of justice. 27.In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason but section 80 gives the High Court greater amplitude for review. There is no similar statute law in this Court. 27.In this Court, save for the slip rule embedded in rule 35 of the Court of Appeal Rules which enables the Court to effect its manifest intention in a judgment or order, there is no apparent jurisdiction to review orders or judgments.” 15.The Court has also consistently held that the jurisdiction to review its orders granted by Rule 37 of the Court of Appeal Rules is limited in scope and must not be used to reopen or argue an appeal afresh and, as further held in Benjoh Amalgamated Ltd & Another vs. Kenya Commercial Bank Ltd (supra), this Court also stated:“61. It is our finding that this Court not being the final 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 confidence 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 confidence in the rule of law and our system of justice.” 16.In the present application, the applicant contends that there was an error apparent on the face of the record and that the Court failed to consider material placed before it. However, upon a careful re-evaluation of the impugned ruling, it is evident that the Court considered all the material placed before it and arrived at a reasoned determination on both limbs of the applicable test, namely, arguability and the nugatory aspect. 17.What the applicant is inviting this Court to do, in essence, is to sit on appeal over its own decision and to re-evaluate the evidence and arguments afresh. This Court lacks the jurisdiction to undertake this type of review. The review envisaged is not one that creates an avenue for fresh arguments or for correcting what a party perceives to be an erroneous conclusion. 18.Further, and importantly, it is not disputed that execution of the judgment sought to be stayed had already taken place by the time the initial application was determined. The suit property had been subdivided and registered accordingly. This Court, in its ruling of 2nd February 2024, expressly addressed this issue and found that the nugatory limb had not been satisfied, and further noted that the application was filed seven (7) months after the impugned ruling. 19.In the end, we find that the application is without merit and the same is dismissed. 20.The application having not been opposed, we make no order as to costs. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI...............................JUDGE OF APPEALALI-ARONI...............................JUDGE OF APPEALA. O. MUCHELULE...............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.