(Application for Review of Ruling dated 12th November 2025)
Before the Court is a Notice of Motion Application under Certificate of Urgency dated 22nd January 2026, brought by Francis Gikundi Marete (the Respondent/Applicant), seeking orders to stay execution of and thereafter review, set aside, vary and/or reverse the Ruling of this Court delivered on 12th November 2025 in ELC Appeal No. E007 of 2023, which had allowed the Appellants' Application dated 14th February 2025 for leave to adduce additional evidence in the pending appeal.
The Appellants/Respondents, Daniel Mwaniki Kobuthi and Moses Muriithi Kobuthi, oppose the Application. The matter was canvassed by way of affidavits and written submissions. The Court has considered all the material on record and now proceeds to determine the Application.
This appeal arises from Embu Chief Magistrate's Court CM-EL No. 69 of 2018, in which judgment was delivered on 21st July 2023 in favour of the Respondent/Applicant, declaring him the registered proprietor of Land Parcel No. GATURI/NEMBURE/708 through proper succession and ordering the Appellants to vacate the suit property. The Appellants, being aggrieved, filed the instant appeal.
On 14th February 2025 (the pleadings refer also to 19th February 2025 as the date of filing), the Appellants filed an application seeking leave to adduce additional evidence, namely a valuation report dated 16th November 2023, tea production records, burial permits, and land registrar records. The Respondent/Applicant filed a Replying Affidavit on 14th April 2025 in opposition to the said Application. Written submissions were subsequently filed by both parties.
On 12th November 2025, this Court (Hon. Lady Justice K. Bor) delivered a Ruling allowing the Appellants' Application. The Respondent/Applicant, upon perusing the Ruling, discovered that paragraph 7 thereof stated: "The Respondent did not file a response to the application." He avers that this statement is factually incorrect, that his Replying Affidavit had been duly filed on 14th April 2025, and that its non-consideration constitutes an error apparent on the face of the record warranting review.
Following delivery of the Ruling, the Respondent/Applicant filed a Notice of Appeal on 21st November 2025, which he subsequently withdrew on 21st January 2026. The present Application for review was filed the same day, on 22nd January 2026.
The Court identifies the following issues for determination:
i) Whether the Application for review is competent and has been brought within reasonable time;
ii) Whether the prior filing and withdrawal of a Notice of Appeal bars the present Application for review;
iii) Whether there exists an error apparent on the face of the record in the Ruling of 12th November 2025 sufficient to ground review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010;
iv) What orders should issue.
The jurisdiction of this Court to review its own decisions is grounded in Section 80 of the Civil Procedure Act (Cap. 21), which provides that any person considering himself aggrieved by a decree or order may apply for a review of the judgment. The procedural framework is provided by Order 45 Rule 1 of the Civil Procedure Rules, 2010, which limits the grounds for review to: (a) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced at the time the decree was passed; (b) some mistake or error apparent on the face of the record; or (c) any other sufficient reason.
The principles governing review are well settled. In National Bank of Kenya Ltd v Ndungu Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR), the Court of Appeal held that an error apparent on the face of the record must be self-evident and not require elaborate argument to establish. It must be an obvious error that can be seen on the face of the record without any investigation or argument. Similarly, in Nyamogo & Nyamogo Advocates v Kogo, the court affirmed that review is not an appeal in disguise and cannot be used to re-litigate matters already determined on the merits. The same principle was reaffirmed in Pancras T. Swai v Kenya Breweries Ltd and Zablon Mokua v Solomon M. Choti & 3 Others [2016] KLR.
Critically, the threshold is not whether the Court failed to agree with a party's submissions, but whether there is a manifest error that is plainly visible on the record. An error requiring elaborate argument or re-evaluation of evidence does not constitute an error apparent on the face of the record. This distinction is crucial in the present Application.
The Appellants contend that the Application is tainted by delay and that the Respondent/Applicant is guilty of laches. The Court does not agree. Order 45 Rule 1 does not prescribe a fixed time limit for applications for review, and it is settled law that what constitutes unreasonable delay depends on the circumstances of each case. As held in Stephen Gathua Kimani v Nancy Wanjira t/a Providence Auctioneers (Civil Appeal 142 of 2012) [2016] KEHC 6883 (KLR), the Court retains a discretion to determine what constitutes unreasonable delay.
The Ruling was delivered on 12th November 2025. The Respondent/Applicant received the uploaded copy on 17th November 2025. A Notice of Appeal was filed on 21st November 2025 — within nine days of delivery. Upon further legal advice that review rather than appeal was the appropriate remedy given the nature of the error alleged, the Notice of Appeal was withdrawn on 21st January 2026, and this Application was filed the following day, on 22nd January 2026. The Court is satisfied that there is a reasonable and coherent explanation for the chronology. The Respondent/Applicant acted promptly and diligently at every stage. The Application cannot be faulted for delay.
The Appellants have not seriously pressed this objection, and rightly so. The law on this point is clear. In Makara v Kirichu & 7 Others (2025) KECA 1221 (KLR), the Court of Appeal expressly held that the filing and subsequent withdrawal of a Notice of Appeal does not bar an application for review. An applicant is at liberty to pursue review even where a Notice of Appeal had previously been filed. This Court respectfully follows that decision. The objection is accordingly overruled.
This is the central issue in this Application. The Respondent/Applicant's case rests on one principal complaint: that at paragraph 7 of the Ruling, the Court stated that "The Respondent did not file a response to the application," whereas in fact a Replying Affidavit had been duly filed on 14th April 2025. The Respondent/Applicant submits that this constitutes a fundamental error apparent on the face of the record, rendering the Ruling made without proper consideration of his opposition, thereby violating his constitutional right to a fair hearing under Article 50 of the Constitution.
The Appellants/Respondents counter that the Ruling at paragraphs 14, 15, 16, 17, 18, 19 and 20 clearly analysed and considered the substantive points raised in the Replying Affidavit and the Respondent/Applicant's submissions. They argue that paragraph 7 must be read in context and that the Ruling cannot be said to have been made on an unopposed basis. They submit further that the Respondent/Applicant's true grievance is with the outcome of the decision, not with a procedural failure.
The Court has carefully perused the impugned Ruling of 12th November 2025 and makes the following observations:
i) The statement at paragraph 7 that "The Respondent did not file a response to the application" is unambiguous. It is a factual assertion recorded on the face of the Ruling. It is not a matter of interpretation or inference — it is an express finding by the Court.
ii) The Court record and the E-filing portal, as exhibited by the Respondent/Applicant (Annexures FGM-1 and FGM-2), incontrovertibly establish that the Replying Affidavit was filed on 14th April 2025. The statement in paragraph 7 is therefore factually wrong.
iii) The Appellants/Respondents' own written submissions dated 5th May 2025 acknowledged and responded to the Replying Affidavit at paragraphs 41 to 45 thereof. This further confirms that the Replying Affidavit was on record and within the knowledge of the Court at the time the matter was heard.
The Appellants submit that notwithstanding paragraph 7, the substance of the Replying Affidavit was in fact considered at paragraphs 14–20 of the Ruling. The Court has examined those paragraphs. It is indeed apparent that in those paragraphs, the Court addressed the substantive arguments raised in opposition to the Appellants' Application. The question that then arises is; if the Court considered the opposition, does the erroneous statement at paragraph 7 constitute a merely typographical or inconsequential error, or does it rise to the level of an error apparent on the face of the record?
In this Court's view, the erroneous statement at paragraph 7 is not a mere typographical slip. It is a factual finding — that the Respondent did not file a response — which formed part of the Court's framing of the factual matrix before it. Where a court expressly states that no response was filed, and then proceeds to determine the application, the foundation of the decision is materially affected, notwithstanding that subsequent paragraphs may engage with submissions. The Court cannot with confidence say that the determination of the Application would have been the same had paragraph 7 correctly acknowledged the filing of the Replying Affidavit and conducted a holistic analysis of the affidavit evidence on both sides. A formal acknowledgment of opposition shapes the entire evaluative framework of a ruling — it engages the court's obligation to weigh competing factual claims, not merely to assess the legal arguments advanced in submissions.
The Appellants rely on Florence Kimoi Kimutai & Joel Kiprotich Kimutai v Francis Chuma (E & L Case No. 385 of 2013), for the proposition that an error apparent on the face of the record must be self-evident and not require elaborate argument. This Court respectfully agrees with that principle and has consistently applied it. However, the present case is distinguishable. The error here does not require elaborate argument to establish — it is plainly visible at paragraph 7 of the Ruling and is directly contradicted by the E-filing record exhibited by the Respondent/Applicant. No elaborate argument is needed; the error announces itself. This is precisely the kind of manifest oversight that the review jurisdiction exists to correct.
The Appellants also rely on National Bank of Kenya Ltd v Ndungu Njau (supra) to argue that review cannot be used to rewrite decisions. The Court agrees in principle. However, the case is distinguishable on its facts. In National Bank of Kenya Ltd v Ndungu Njau, the applicant sought to re-argue the merits of a decision with which he was dissatisfied. In the present case, the Respondent/Applicant is not inviting the Court to reconsider the weight of evidence or change its legal analysis — he is pointing to a specific, identified, verifiable error on the face of the record that affected the very basis upon which the Ruling was premised. That is a fundamentally different exercise.
Similarly, the reliance on Zablon Mokua v Solomon M. Choti & 3 Others and Pancras T. Swai v Kenya Breweries Ltd is misplaced in the present context. Those cases reinforce that review is not a second appeal and that an applicant's mere dissatisfaction with a ruling does not constitute sufficient grounds for review. The Respondent/Applicant's grievance here, however, is not mere dissatisfaction with the outcome — it is the objectively demonstrable failure of the Ruling to acknowledge a duly filed Replying Affidavit. The distinction is material and dispositive.
The right to a fair hearing guaranteed under Article 50 of the Constitution of Kenya, 2010, includes the right to have all materials duly placed before a court considered in the determination of one's case. Where a court expressly records that no response was filed when in fact one was filed, the concern is not academic — it strikes at the procedural integrity of the decision-making process and requires correction through the review mechanism.
The Court is therefore satisfied that there is an error apparent on the face of the record at paragraph 7 of the Ruling of 12th November 2025, and that the interests of justice require that the Ruling be reviewed.
In the premises, the Court makes the following orders:
1) The Notice of Motion Application dated 22nd January 2026 is hereby allowed.
2) The Ruling of this Court delivered on 12th November 2025 in ELC Appeal No. E007 of 2023, allowing the Appellants' Application dated 14th February 2025 for leave to adduce additional evidence, is hereby set aside.
3) The Appellants' Application dated 14th February 2025 for leave to adduce additional evidence in the appeal shall be set down for fresh hearing and determination with due consideration to be given to all materials filed by both parties, including the Respondent/Applicant's Replying Affidavit sworn on 11th April 2025 and filed on 14th April 2025.
4) In the interim, there shall be a stay of any steps taken pursuant to the Ruling of 12th November 2025 pending the fresh determination of the Application dated 14th February 2025.
5) The costs of this Application shall be in the cause.
IT IS SO ORDERED.
DATED, SIGNED AND DELIVERED AT EMBU THIS 28TH DAY OF MAY, 2026.
E.C CHERONO
ELC JUDGE, EMBU
In the presence of;
1. Mr. Gachuki for the Appellant
2. Mr. Barasa for the Respondent
3. M/S Ruth C/A
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