RULING
1. On 26/2/2025 this court entered judgment for the plaintiff/applicant herein against the defendant/respondent herein in terms that a declaration is hereby issued that the defendant is liable to satisfy the decretal sums adjudged in the primary suits as follows:
a. KShs 184,700 in Kwale RMCC No. 300 of 2018,
b. KShs 302,000 in Kwale RMCC No. 302 of 2018,
c. KShs 152,000 in Kwale RMCC No. 314 of 2018,
d. KShs 251,860 in Kwale RMCC No. 327 of 2018,
e. KShs 132,000 in Kwale RMCC No. 328 of 2018,
f. KShs 183,200 in Kwale RMCC No. 329 of 2018,
g. KShs 117,000 in Kwale RMCC No. 336 of 2018,
h. KShs 422,000 in Kwale RMCC No. 337 of 2018,
i. KShs 117,650 in Kwale RMCC No. 338 of 2018,
j. KShs 198,545 in Kwale RMCC No. 339 of 2018,
k. KShs 132,000 in Kwale RMCC No. 340 of 2018
l. KShs 137,860 in Kwale RMCC No. 385 of 2018,
m. KShs 135,470 in Kwale RMCC No. 387 of 2018,
n. KShs 181,530 in Kwale RMCC No. 388 of 2018,
o. KShs 183,270 in Kwale RMCC No. 391 of 2018,
p. KShs 128,600 in Kwale RMCC No. 392 of 2018.
2. The applicant, David Owuor Ongoro has come back to court in a notice of motion dated 27/3/2025 seeking the following orders for this court to:
a. review, the judgment dated and delivered on 26/2/2025 by allowing prayer “b” in the plaint which was to the effect that, “a declaration that the defendant settles the decretal sum in any other suit filed as a result of the subject accident involving the subject motor vehicle.”
3. The application for review is premised on the ground that the judgment omitted a material relief sought in the plaint by the plaintiff as laid out above. That this has the effect of exposing the plaintiff/applicant to potential execution from suits arising from the subject accident involving the subject motor vehicle and that some decree holders had commenced such execution in various primary suits not specifically listed in the said judgment of this court.
4. The application is brought under Order 45 and Order 51 Rule 1 of the Civil Procedure Rules, section 1A, 1B, 3A and 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
5. The application is supported by the affidavit of David Owuor Ongoro the applicant sworn on 27/3/2025 largely in terms set out above as per the grounds in support.
6. There is no response to the application by the respondent who has never participated in the proceedings in the matter despite being duly served.
7. Besides depositing that the judgment omitted a material relief in terms set out above, the applicant deposes further that it was not possible to include all potential suits in the prior application and thus the inclusion in the plaint of the prayer that this court allegedly omitted to grant.
8. He deposes further that some of the decree holders in primary suits not listed in the court’s judgment have already commenced execution proceedings against him. He has annexed to the application a Notice To Show Cause why execution should not issue in Kwale Magistrates Court Civil Suit No. 295 of 2018, Faith Syombua Kingoo V. David Owuor Ongoro & 2 others given on 22/11/2024. However, a reading of that case NTSC shows that it was given way before the suit herein was determined and also that it is part of the list of cases included in the list in the judgment of this court. However, I have seen also annexed to the affidavit another long list of 35 cases under the heading of “Pending Judgments & Decrees Against David Owuor Ongoro. It does not bear any details of when the same was prepared and by whom. It is not clear why the applicant chose to pick out of this list the 18 cases that he listed in his suit the subject of the judgment and leave out the rest and lump them under the prayer of any other suit filed as a result of the accident involving the subject motor vehicle. He deposes further that unless the order of review herein is granted he will remain under the mercy of the various decree-holders not specifically listed in the judgement and this will cause him great prejudice and irreparable damage.
9. The court had initially directed that the application be heard by way of written submissions but learned counsel for the applicant later said that they did not wish to file submissions and the court could deliver the ruling on the material on record.
10. I have considered the notice of motion application, the grounds in support thereof and the supporting affidavit. The issue for determination are whether the application meets the threshold for grant of an order for review under section 80 Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 of the Civil Procedure Rules. Under these provisions of the law, a party seeking review is under obligation to demonstrate that:
a. there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there is some mistake or error apparent on the face of the record; or
c. that there is any other sufficient reason; and
d. that the application has been brought without unreasonable delay.
11. The present application is based on the assertion that there is a mistake or error apparent on the face of the record. I will refer to the definition of error or mistake apparent on the face of the record in the case of Nyamogo & Nyamogo Advocates vs. Kago (2001) 1 EA 173, where the Court of Appeal said:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."
12. In the present case, the applicant came to court seeking several prayers in the suit. There was a prayer for a declaration that the defendant settles the decretal sum in any other suit filed as a result of the subject accident involving the subject motor vehicle.
13. I am guided by the case of National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR, the Court of Appeal held that:
"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 the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."
14. The error by the court to grant the prayer herein isself-evident as it was left out of the judgment. The court simply failed to include it in the judgment.
15. Consequently, I find that the application herein has merit and the same is allowed with no orders for costs.
16. Orders accordingly.
17. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 9th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
No appearance for applicant.
No appearance for the respondent.
Ummu: Court Assistant.
1. On 26/2/2025 this court entered judgment for the plaintiff/applicant herein against the defendant/respondent herein in terms that a declaration is hereby issued that the defendant is liable to satisfy the decretal sums adjudged in the primary suits as follows:
a. KShs 184,700 in Kwale RMCC No. 300 of 2018,
b. KShs 302,000 in Kwale RMCC No. 302 of 2018,
c. KShs 152,000 in Kwale RMCC No. 314 of 2018,
d. KShs 251,860 in Kwale RMCC No. 327 of 2018,
e. KShs 132,000 in Kwale RMCC No. 328 of 2018,
f. KShs 183,200 in Kwale RMCC No. 329 of 2018,
g. KShs 117,000 in Kwale RMCC No. 336 of 2018,
h. KShs 422,000 in Kwale RMCC No. 337 of 2018,
i. KShs 117,650 in Kwale RMCC No. 338 of 2018,
j. KShs 198,545 in Kwale RMCC No. 339 of 2018,
k. KShs 132,000 in Kwale RMCC No. 340 of 2018
l. KShs 137,860 in Kwale RMCC No. 385 of 2018,
m. KShs 135,470 in Kwale RMCC No. 387 of 2018,
n. KShs 181,530 in Kwale RMCC No. 388 of 2018,
o. KShs 183,270 in Kwale RMCC No. 391 of 2018,
p. KShs 128,600 in Kwale RMCC No. 392 of 2018.
2. The applicant, David Owuor Ongoro has come back to court in a notice of motion dated 27/3/2025 seeking the following orders for this court to:
a. review, the judgment dated and delivered on 26/2/2025 by allowing prayer “b” in the plaint which was to the effect that, “a declaration that the defendant settles the decretal sum in any other suit filed as a result of the subject accident involving the subject motor vehicle.”
3. The application for review is premised on the ground that the judgment omitted a material relief sought in the plaint by the plaintiff as laid out above. That this has the effect of exposing the plaintiff/applicant to potential execution from suits arising from the subject accident involving the subject motor vehicle and that some decree holders had commenced such execution in various primary suits not specifically listed in the said judgment of this court.
4. The application is brought under Order 45 and Order 51 Rule 1 of the Civil Procedure Rules, section 1A, 1B, 3A and 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
5. The application is supported by the affidavit of David Owuor Ongoro the applicant sworn on 27/3/2025 largely in terms set out above as per the grounds in support.
6. There is no response to the application by the respondent who has never participated in the proceedings in the matter despite being duly served.
7. Besides depositing that the judgment omitted a material relief in terms set out above, the applicant deposes further that it was not possible to include all potential suits in the prior application and thus the inclusion in the plaint of the prayer that this court allegedly omitted to grant.
8. He deposes further that some of the decree holders in primary suits not listed in the court’s judgment have already commenced execution proceedings against him. He has annexed to the application a Notice To Show Cause why execution should not issue in Kwale Magistrates Court Civil Suit No. 295 of 2018, Faith Syombua Kingoo V. David Owuor Ongoro & 2 others given on 22/11/2024. However, a reading of that case NTSC shows that it was given way before the suit herein was determined and also that it is part of the list of cases included in the list in the judgment of this court. However, I have seen also annexed to the affidavit another long list of 35 cases under the heading of “Pending Judgments & Decrees Against David Owuor Ongoro. It does not bear any details of when the same was prepared and by whom. It is not clear why the applicant chose to pick out of this list the 18 cases that he listed in his suit the subject of the judgment and leave out the rest and lump them under the prayer of any other suit filed as a result of the accident involving the subject motor vehicle. He deposes further that unless the order of review herein is granted he will remain under the mercy of the various decree-holders not specifically listed in the judgement and this will cause him great prejudice and irreparable damage.
9. The court had initially directed that the application be heard by way of written submissions but learned counsel for the applicant later said that they did not wish to file submissions and the court could deliver the ruling on the material on record.
10. I have considered the notice of motion application, the grounds in support thereof and the supporting affidavit. The issue for determination are whether the application meets the threshold for grant of an order for review under section 80 Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 of the Civil Procedure Rules. Under these provisions of the law, a party seeking review is under obligation to demonstrate that:
a. there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there is some mistake or error apparent on the face of the record; or
c. that there is any other sufficient reason; and
d. that the application has been brought without unreasonable delay.
11. The present application is based on the assertion that there is a mistake or error apparent on the face of the record. I will refer to the definition of error or mistake apparent on the face of the record in the case of Nyamogo & Nyamogo Advocates vs. Kago (2001) 1 EA 173, where the Court of Appeal said:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."
12. In the present case, the applicant came to court seeking several prayers in the suit. There was a prayer for a declaration that the defendant settles the decretal sum in any other suit filed as a result of the subject accident involving the subject motor vehicle.
13. I am guided by the case of National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR, the Court of Appeal held that:
"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 the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."
14. The error by the court to grant the prayer herein isself-evident as it was left out of the judgment. The court simply failed to include it in the judgment.
15. Consequently, I find that the application herein has merit and the same is allowed with no orders for costs.
16. Orders accordingly.
17. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 9th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
No appearance for applicant.
No appearance for the respondent.
Ummu: Court Assistant.