The application before the court for determination is the Notice of Motion application dated 1st December, 2025, brought by the Appellant pursuant to the provisions of sections 1A, 1B, 3A, and 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules.
The application seeks for an order of review of the court ruling/order of 9th October, 2025 specifically the order directing the Appellant/Applicant to deposit Kshs.500,000/- as security within 60 days from the date of the ruling in default of which the stay granted shall automatically lapse without any further reference to the court and substitute the order with an order that the Appellant/Applicant maintains status quo of Maseno plot No.9341/19A Maseno Township pending determination of the appeal and that the Applicant deposit in court the original logbook for motor vehicle registration number KAG 582H as security. The application also seeks that the costs be provided for.
The application was supported by the averment in the Supporting Affidavit of Basil Washington Achienga, sworn on 1st December, 2025, and the annexures thereto. Although the parties sought and were granted leave to file Further Affidavits, they did not file any.
The 1st Respondent opposed the application vide averments in the Replying Affidavit sworn on 8th April 2026.
The 2nd Respondent did not oppose the application. The substantive relief sought is for review of a court ruling/order. The grounds for review, setting aside of court judgements, decrees, and orders are set out in Section 80 of the Civil Procedure Act and Order 45 Civil Procedure Rules 2010, pursuant to which the present application is brought. Those grounds are;
(i) discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him/her at the time when the decree was passed or the order made.
(ii) or on account of some mistake or error apparent on the face of the record, or
(iii) for any other sufficient reason,
the application must be brought without unreasonable delay.
The grounds upon which the present application is brought are that, based on his most recent bank statement, it is apparent that the Applicant lacks the capacity to raise Kshs. 500,000/- as security, hence he stands to be evicted if the instant orders and/or conditions for stay of execution are not varied in light of the new evidence.
That the Applicant will suffer great prejudice if the ruling is not reviewed. That the shop, which sits on the suit property is valued at approximately Kshs. 2 million. That the application also owns a motor vehicle valued at Kshs. 1 million, which the Applicant is willing to offer as security.
That the application was brought without undue delay.
I have considered the application, the Supporting Affidavit and annexures, and the Replying Affidavit by the 1st Respondent. The request for review is based on the ground of the availability of new evidence, namely the recent bank statement in respect of the Applicant’s bank account, which is meant to demonstrate that he had no capacity to raise the sum of Kshs. 500,000/- as security as ordered by the court.
The Applicant is the Appellant herein. He filed the appeal on 14th November, 2024, vide the Memorandum of appeal dated 12th September, 2024. To date, the Appellant has not filed the record of appeal, thus delaying the disposal of the appeal.
The court record shows that the proceedings of the trial court are typed and certified ready for collection, and the lower court file was forwarded to this court. The only thing holding up the hearing and disposal of the appeal is the lack of the record of the appeal duly compiled, filed, and served upon the Respondents by the Appellant.
To the application are attached bank statements in respect of the Applicant's bank account. These are the ones referred to by the Applicant in paragraphs 4, 5, and 6 of the Supporting Affidavit as the new evidence.
The bank account belongs to the Applicant. It has not been explained how the bank statement in respect thereof becomes new evidence for purposes of an application for review. The Applicant cannot claim to have discovered the balances of his bank account only recently.
I find that the grounds for review of the court order have not been demonstrated. The application is hereby dismissed. Costs to the Respondent. The applicant is urged to file and serve the record of appeal to expedite the disposal of the appeal.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered virtually this 2nd day of July, 2026.
E. ASATI,
JUDGE.
In the presence of:
Atika: Court Assistant.
Aguko h/b for Okoth for Appellant/Applicant.
Wochuna for the Respondent.
| ELC LA E072/2024 RULING 2 |