Waswa v Nyongesa (Civil Appeal (Application) 49 of 2018) [2025] KECA 1777 (KLR) (24 October 2025) (Ruling)
Neutral citation:
[2025] KECA 1777 (KLR)
Republic of Kenya
Civil Appeal (Application) 49 of 2018
MS Asike-Makhandia, HA Omondi & AO Muchelule, JJA
October 24, 2025
Between
Zakayo Waswa
Appellant
and
Melitus Charles Nyongesa
Respondent
(Being an application for review setting aside the judgment of this Court (Kiage, Mumbi Ngugi & Tuiyott, JJA.) dated 23rd June 2023 in HCCC No. 43 OF 2001
Civil Appeal 49 of 2018,
Civil Suit 43 of 2001
)
Ruling
1.The background of this application is that, the appellant/applicant, Zakayo Waswa, challenged the decision of the High Court at Bungoma (Makunya, J.) which found that his claim that the respondent, Miletus Charles Nyongesa, had fraudulently acquired land parcels Nos. West Bukusu/North Mateka/77 (measuring 2.8. hectares) and West Bukusu/North Mateka/85 (measuring 0.6 hectares) had not been established. The High Court had also found that the cause of action had arisen in 1987, and therefore the claim was time barred. The suit was struck out.
2.The appellant was aggrieved and appealed to this Court.
3.This Court (Kiage, Mumbi Ngugi, & Tuiyott, JJ.A.) heard the appeal, and found that the suit was not time-barred. On the question whether the suit properties had been fraudulently transferred to the respondent herein, the court found that fraud had been established and issued the following orders:-
4.It is notable that the High Court decision was rendered on 22nd February 2018, the appeal was heard on 9th March 2022 and was determined on 23rd June 2023. During the hearing of the appeal, the appellant/applicant was represented by learned counsel Mr. C. Akhaabi who had filed written submissions. The respondent was absent, as was his advocate learned counsel Mr. Kituyi who had not filed written submissions.
5.By way of motion dated 7th September 2023, pursuant to Rule 102(2) of the Court of Appeal Rules and section 3A and 3B of the Appellate Jurisdiction Act, the respondent sought an order for the stay of execution of this Court’s ruling delivered on 23rd June 2023, and an order that the judgment be set aside and the appeal be reheard. He complained that on the day of the hearing of the appeal, he was absent as was his advocate and that no written submissions had been filed on his behalf. The reason for his absence was that he had not been served with any hearing notice, and therefore he did not know that the appeal was coming up for hearing. He became aware of the judgment on 11th August 2023, and therefore this application had been brought without delay.
6.His further case was that, his advocate had informed him that he had not been invited to attend the case management session and was not therefore aware of the directions in relation to the filing of written submissions.
7.The respondent got his then advocate, learned counsel Mr. Kituyi, to swear an affidavit to support the application. It is evident that his law firm was served through their email to attend case management, and that it was served with the hearing notice for the hearing of the appeal. Learned counsel stated that, although there is evidence of service, he was not aware of either. The record states that he attended case management, but he stated that he did not.
8.Finally, the respondent requests that the mistakes of his counsel should not be visited on him.
9.The motion was opposed. According to the appellant, it was evident that the respondent’s advocate was served with the hearing notice, therefore there isn’t any sufficient reason why he should be indulged. In any case, the application has been overtaken by events as the judgment had since been executed. Learned counsel for the appellant further pointed out that, the respondent’s advocate had been served with hearing notice at the stage of case management and at the stage of the hearing of the appeal. In each case, his email address had been used. The email address by the Court’s registry corresponds with the email address supplied by learned counsel Mr. Kituyi in his pleadings, it was urged. It cannot therefore be said that learned counsel did not receive the emails.
10.When we listened to counsel Mr. Onyango who now represents the respondent, admitted the email used to serve learned counsel Mr. Kituyi was the correct one, but that the court record was incorrect when it stated that learned counsel Mr. Kituyi was present for the case management. If he was not present, it was argued, he did not become aware of the direction on the filing and submissions.
11.We have considered the application, the rival affidavits and the submissions of either side.
12.In Benjoh Amalgamated Limited -vs- Kenya Commercial Bank Limited [2014] eKLR, this Court was dealing with the question whether it had power to review its decision. It stated as follows:-
13.The decision in Benjoh Amalgamated Limited (supra) was followed in Standard Chartered Financial Services Ltd & Another -vs- Manchester Outfitters (Suiting Division) Ltd & 2 Others [2017]eKLR in which the Court reiterated that it had residual jurisdiction to review its decisions in exceptional circumstances. In the case, the Court set aside its judgment on the basis that it was made without jurisdiction. Further that, there was the likelihood of bias as one of the Judges had had contact with one of the parties.
14.Lastly, in the Supreme Court decision of Fredrick Otieno Outa -vs- Jared Odoyo Okeyo & 3 Others [2017] eKLR, identified the exceptional circumstances where the court, in exercise of its inherent powers, may, upon application by a party, or on its own motion, review any of its own judgments, rulings or orders to meet the ends of justice. The circumstances were limited to:-a.where the judgment, ruling or order, was obtained by fraud or deceit;b.where the judgment, ruling or order was a nullity, such as when the Court itself was not competent;c.where the court was misled into giving judgment, ruling or order under a mistaken belief that the parties had consented thereto; andd.where the judgment, ruling or order was rendered on the basis of repealed law, or as a result of, a deliberately concealed statutory provision.
15.In the current application, the respondent seeks review of the judgment on the ground that counsel then on record was not aware of the case management session that was before the Deputy Registrar of this Court, and thus was not able to file written submissions in the appeal. Secondly, that despite the registry having used the correct email address to send out the hearing notice with a reminder to file written submissions, the previous counsel asserted that he had not been in receipt of the emails from the Court.
16.It is our considered view that, the registry did all that was required by the law to invite the respondent’s counsel for case management and for the hearing of the appeal. We accept the court record that the learned counsel attended the case management and therefore was aware that he was required to file written submissions, which he failed to do. It is on record that he was reminded by email to file written submissions. He failed to heed. He was emailed the hearing notice. He did not attend the hearing. His is a clear case of professional misconduct. The respondent has recourse elsewhere.
17.The respondent was as early as 2018 aware of the appeal. It looks like it took him over 4 years to find from his then counsel what had become of the appeal. That was not an action of a vigilant and/or a prudent litigant. The exceptional inherent power donated to this Court to review its judgment, ruling or order is not meant to help such counsel or litigant. We find that the finality principle to have conclusiveness to the land dispute between the appellant and the respondent would serve the interests of justice in this case.
18.In the final analysis, we find no merit in the application which we dismiss with costs to the respondent.
DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF OCTOBER 2025ASIKE-MAKHANDIA.....................................JUDGE OF APPEALH.A. OMONDI.....................................JUDGE OF APPEALA.O. MUCHELULE.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR