RULING:
1. I have considered the grounds on the face of the application dated 29th September, 2023 together with the supporting affidavit sworn on even date and the grounds of opposition dated 5th October 2023 and the replying affidavit in opposition to the same sworn on 29.9.23 together with the rival submissions made by the parties and applicable law.
2. I have considered the above and find that the prayers relating to grant of an injunction have already been dealt with by a previous ruling issued by my brother, Majanja, J. on 29th September, 2023 arising from a Notice of Motion Application dated 18.09.23. Nothing has changed since then. I find that those issues and prayers have already been dealt with conclusively and I decline to interfere with them.
3. As regards, the prayers for review, the provisions of Order 45 Rule 1 provides for the review of a decree or order as follows:-
(1) Any person considering himself aggrieved: -
a) By a decree or order from which an appeal is allowed but from which no appeal has been preferred or
b) By a decree or order from which no appeal is hereby allowed, and from whom the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay.,
4. There are three limbs which are discernible from part (b) above
a) Discovery of new and important matter or evidence.
b) Mistake or error apparent on the face of the record.
c) Any other sufficient reason.
5. From the above provisions it is clear that while Section 80 of the Civil Procedure Act gives the court the power to make orders for review, Order 45 sets out the conditions to be met in a review.
6. In Republic –vs- Public Procurement Administrative Review Board & 2 Others the court held that:-
Section 80 gives the power of review and Order 45 sets out rules. These rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review.
7. Order XLIV of the Civil Procedure Rules were stated by this Court in National Bank of Kenya Limited vs. Ndungu Njau – Civil Appeal No. 211 of 1996 (unreported), thus:
“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 the law. Misconstruing a statute or other provisions of law cannot be a ground for review”.
8. In the present application, the applicant has not disclosed any defect on the face of the record. Rather, the court made a finding on the relevant issues before it. The respondent stated, and I agree, that the question of service of statutory notices has already been resolved by the court and may only be reopened on appeal.
9. Further, I find that the applicant has not demonstrated that there has been discovery of new and important matter or evidence, or that there is an error apparent on the face of the record.
10. I am further guided by the decision of the Court of Appeal in Shanzu Investments Limited v Commissioner for Lands (Civil Appeal No 100 of 1993), where the court stated that:
“Any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the court by section 80 of the civil procedure act: and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.”
11. Based on the above, I have also considered the other reasons outlined in the application and submitted by counsel as grounds for review. I find that the other reasons advanced by the Applicant do not meet the threshold.
12. The upshot of the foregoing is that the application is dismissed with costs to the respondent.