Background
1. By a Ruling delivered on 25th June 2026, this Court dismissed the Applicant's Notice of Motion dated 30th January 2026, which had sought leave to appeal out of time and a stay of execution of the decree entered in Milimani CMCC No. 1245 of 2012. The dismissal turned on a single finding: that the Applicant, having filed an application for review dated 28th January 2026 before the subordinate court, could not simultaneously pursue an appeal before this Court, and that "there is no evidence that the said review application has been withdrawn ... or otherwise dealt with."
2. The Applicant now moves the Court, by the present Notice of Motion dated 30th June 2026, to review and set aside that Ruling under Order 45 Rule 1 of the Civil Procedure Rules, contending that the finding of "no evidence" of withdrawal is an error apparent on the face of the record.
3. The Respondent opposes the application, arguing principally that as at 17th February 2026 — the date directions were taken on the substantive application — the review application before the subordinate court remained "alive and well," since the Notice of Withdrawal dated 31st January 2026 was not formally endorsed by the subordinate court until 20th April 2026.
4. The Application was canvassed by way of written submissions. Both the Applicant and the Respondent filed their respective submissions outside the timelines directed by this Court; I have nevertheless considered the submissions in the present application.
Issue for Determination
5. From the pleadings and submissions on record, I find that the sole issue is whether the Applicant has demonstrated an error apparent on the face of the record warranting review of the Ruling of 25th June 2026.
6. Section 80 of the Civil Procedure Act empowers the Court to review its decree or order, while Order 45 Rule 1 permits review on discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, provided the application is made without unreasonable delay.
7. It is trite that an error apparent on the face of the record is one that is self-evident and does not require a long-drawn process of reasoning to establish — see Nyamogo & Nyamogo v Kogo [2001] EA 170, cited with approval in Shah v Shah [2025] KEHC 15979 (KLR). Where a substantial point stares the Court in the face and admits of no two reasonable opinions, review will lie; a mere erroneous view arrived at after elaborate argument will not suffice.
8. The record before this Court establishes the following sequence, which is not seriously in dispute:
i. The Applicant filed an application for review dated 28th January 2026 before the subordinate court;
ii. The Applicant filed a Notice of Withdrawal of that application, dated 31st January 2026;
iii. On 17th February 2026, during a mention before this Court, the Applicant's advocate informed the Court of the withdrawal, and this Court directed that the Notice be uploaded as proof. It was uploaded the same day at 10:36 a.m., and the Court proceeded to issue directions on the substantive application on that basis;
iv. The subordinate court subsequently recorded, on 20th April 2026, that the application before it had been "withdrawn, no orders as to costs."
9. The Ruling of 25th June 2026 proceeded on the premise that there was "no evidence" of withdrawal. That premise is not borne out by the record of this very case, which, by the Court's own direction, already contained the Notice of Withdrawal as at 17th February 2026, more than four months before the impugned Ruling was delivered. This is not a matter requiring elaborate argument to uncover; it is apparent from the case file itself.
10. The Respondent's answer is that the subordinate court's endorsement on 20th April 2026, rather than the filing on 31st January 2026, marks the operative date of withdrawal, and that until endorsement the application remained "pending."
11. That submission by the Respondent does not withstand scrutiny. The weight of authority is that a notice of withdrawal takes effect upon filing and does not require adoption or endorsement by the court to become operative. In Mukundi & 3 others v South Cape Investment Limited & 2 others [2024] KEELRC 900 (KLR), the Court held in terms that once the notice of withdrawal has been filed, the notice becomes effective and does not require adoption by the court to become effective.
12. The general principle recognised in Kofinaf Company Ltd & Another v Nahashon Ngige Nyagah & 20 Others [2017] eKLR that a party's unilateral right to discontinue is (save in defined exceptions not applicable here) complete upon filing; and the Supreme Court's affirmation in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR that a party's right to withdraw a matter before a court cannot be taken away, point firmly in the same direction.
13. On that basis, the review application before the subordinate court ceased to be a live matter upon the filing of the Notice of Withdrawal, well before this Court took directions on 17th February 2026. The subsequent endorsement of 20th April 2026 was an administrative act of record-keeping — explained, moreover, by two non-sitting mention dates — and not a jurisdictional precondition to the efficacy of the withdrawal.
14. I accordingly find that the Applicant has established an error apparent on the face of the record within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. The application for review was also filed on 30th June 2026, only five days after the impugned ruling, and was therefore brought without unreasonable delay.
15. For the foregoing reasons, the Notice of Motion dated 30th June 2026 succeeds. Accordingly, the following orders shall issue:
i. The Ruling delivered on 25th June 2026 is hereby reviewed and set aside.
ii. The Applicant's Notice of Motion dated 30th January 2026 is reinstated and shall be heard afresh on its merits.
iii. Pending the hearing and determination of the reinstated application, execution of the decree in Milimani CMCC No. 1245 of 2012 is stayed.
iv. Costs of this application shall be in the cause.
16. Orders accordingly.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. By a Ruling delivered on 25th June 2026, this Court dismissed the Applicant's Notice of Motion dated 30th January 2026, which had sought leave to appeal out of time and a stay of execution of the decree entered in Milimani CMCC No. 1245 of 2012. The dismissal turned on a single finding: that the Applicant, having filed an application for review dated 28th January 2026 before the subordinate court, could not simultaneously pursue an appeal before this Court, and that "there is no evidence that the said review application has been withdrawn ... or otherwise dealt with."
2. The Applicant now moves the Court, by the present Notice of Motion dated 30th June 2026, to review and set aside that Ruling under Order 45 Rule 1 of the Civil Procedure Rules, contending that the finding of "no evidence" of withdrawal is an error apparent on the face of the record.
3. The Respondent opposes the application, arguing principally that as at 17th February 2026 — the date directions were taken on the substantive application — the review application before the subordinate court remained "alive and well," since the Notice of Withdrawal dated 31st January 2026 was not formally endorsed by the subordinate court until 20th April 2026.
4. The Application was canvassed by way of written submissions. Both the Applicant and the Respondent filed their respective submissions outside the timelines directed by this Court; I have nevertheless considered the submissions in the present application.
Issue for Determination
5. From the pleadings and submissions on record, I find that the sole issue is whether the Applicant has demonstrated an error apparent on the face of the record warranting review of the Ruling of 25th June 2026.
6. Section 80 of the Civil Procedure Act empowers the Court to review its decree or order, while Order 45 Rule 1 permits review on discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, provided the application is made without unreasonable delay.
7. It is trite that an error apparent on the face of the record is one that is self-evident and does not require a long-drawn process of reasoning to establish — see Nyamogo & Nyamogo v Kogo [2001] EA 170, cited with approval in Shah v Shah [2025] KEHC 15979 (KLR). Where a substantial point stares the Court in the face and admits of no two reasonable opinions, review will lie; a mere erroneous view arrived at after elaborate argument will not suffice.
8. The record before this Court establishes the following sequence, which is not seriously in dispute:
i. The Applicant filed an application for review dated 28th January 2026 before the subordinate court;
ii. The Applicant filed a Notice of Withdrawal of that application, dated 31st January 2026;
iii. On 17th February 2026, during a mention before this Court, the Applicant's advocate informed the Court of the withdrawal, and this Court directed that the Notice be uploaded as proof. It was uploaded the same day at 10:36 a.m., and the Court proceeded to issue directions on the substantive application on that basis;
iv. The subordinate court subsequently recorded, on 20th April 2026, that the application before it had been "withdrawn, no orders as to costs."
9. The Ruling of 25th June 2026 proceeded on the premise that there was "no evidence" of withdrawal. That premise is not borne out by the record of this very case, which, by the Court's own direction, already contained the Notice of Withdrawal as at 17th February 2026, more than four months before the impugned Ruling was delivered. This is not a matter requiring elaborate argument to uncover; it is apparent from the case file itself.
10. The Respondent's answer is that the subordinate court's endorsement on 20th April 2026, rather than the filing on 31st January 2026, marks the operative date of withdrawal, and that until endorsement the application remained "pending."
11. That submission by the Respondent does not withstand scrutiny. The weight of authority is that a notice of withdrawal takes effect upon filing and does not require adoption or endorsement by the court to become operative. In Mukundi & 3 others v South Cape Investment Limited & 2 others [2024] KEELRC 900 (KLR), the Court held in terms that once the notice of withdrawal has been filed, the notice becomes effective and does not require adoption by the court to become effective.
12. The general principle recognised in Kofinaf Company Ltd & Another v Nahashon Ngige Nyagah & 20 Others [2017] eKLR that a party's unilateral right to discontinue is (save in defined exceptions not applicable here) complete upon filing; and the Supreme Court's affirmation in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR that a party's right to withdraw a matter before a court cannot be taken away, point firmly in the same direction.
13. On that basis, the review application before the subordinate court ceased to be a live matter upon the filing of the Notice of Withdrawal, well before this Court took directions on 17th February 2026. The subsequent endorsement of 20th April 2026 was an administrative act of record-keeping — explained, moreover, by two non-sitting mention dates — and not a jurisdictional precondition to the efficacy of the withdrawal.
14. I accordingly find that the Applicant has established an error apparent on the face of the record within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. The application for review was also filed on 30th June 2026, only five days after the impugned ruling, and was therefore brought without unreasonable delay.
15. For the foregoing reasons, the Notice of Motion dated 30th June 2026 succeeds. Accordingly, the following orders shall issue:
i. The Ruling delivered on 25th June 2026 is hereby reviewed and set aside.
ii. The Applicant's Notice of Motion dated 30th January 2026 is reinstated and shall be heard afresh on its merits.
iii. Pending the hearing and determination of the reinstated application, execution of the decree in Milimani CMCC No. 1245 of 2012 is stayed.
iv. Costs of this application shall be in the cause.
16. Orders accordingly.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent