'R U L I N G
Applicants Case
The applicant, Emerg Investments Limited has come to court seeking orders that this honorable court be pleased to vary and or review its judgment and decree delivered on 10th day of July 2025 to include additional award of Kshs1,988,566.00. The applicant asks for costs of the application.
The applications is based on grounds that on the 7th day of July 2025, this court delivered a judgment in favor of the Plaintiff/Applicant herein. In its judgment, the Honorable Court inadvertently did not deal with and therefore award the pleaded and proved claims in respect of costs of repair of the subject demised premises and rent arrears for the three (3) months of March, April and May of 2024 the lease, totaling Ksh342,526:00 and Ksh1,646,040:00 respectively.
The omission to address the referenced subject prayers has occasioned a severe miscarriage of justice as the Plaintiff/Applicant who has been denied the full scope of remedies on account of the proven breach of contract by the Defendant/Respondent. This Honorable Court is vested with wide discretion to review the terms of the judgment and correct any error (s) that is apparent on the face of the record in order to ensure that parties are not sent away from the seat of justice unheard.
It is in the interests of justice that the orders sought herein are granted and this Honorable Court moves to canvass/address itself to the prayers for costs of repair of the subject demised premises and rent arrears for the last three (3) months of the lease. The instant Application has been made without undue delay. The application is supported by the affidavit of Nalinkumer M Shah that reiterates the grounds of the application.
Respondents Case
Mr Allan K Mitei filed a replying affidavit in opposition to the application. He states that the application is baseless misconceived and an abuse of the process of court and that for a decision to be reviewed on the ground of error or mistake apparent on the face of record, such an error or mistake must be so obvious and self-evident that it requires no elaborate argument to be established. The judgment delivered was made in discretion after evaluation of all the documents and evidence in the court''s record.
According to the respondent, this application calls this Honorable Court to re-evaluate, re-analyze and re interpret the judgment which would amount to it sitting as an appellate court over its own decision.
He contends that this application is therefore misguided since a decision made in exercise of a court''s discretionary power cannot be said to be an error in the face of record. The Applicant has not demonstrated any exceptional grounds to warrant review of this Court''s judgment. The integrity of this Court must be protected from abuse by parties who seek to circumvent lawful decisions through unmeritorious applications. The Respondent stands to suffer prejudice should this application be allowed. In the circumstances, it is in the interest of justice that this application is dismissed with costs.
Rival Submissions
The applicants submits that the application herein is brought on account of what appears to be an unmistakable occasion of in advertent mistake or error apparent on the face of record and therefore it is merited. This court mentioned the issue of rent arrears for three months and costs of repairs only on one occasion at the point of analyzing the plaintiffs case and its subsequent submissions. There is no other mention. The applicant believes that after analysis of the evidence, and the determination that the defendant was in breach of the lease, the court only awarded the compensatory damages in respect of the breach. Somehow, and out of sheer oversight, the court did not go back to deal with other concomitant reliefs sought in the rent arrears for the specific pleaded months and repair costs which were clearly sought and addressed by the Plaintiff/Applicant in its evidence.
The applicant contends in his submissions that it is on that token that he is of the view that the said judgment is attended by error apparent on the face of record, being that the Honorable Court inadvertently failed to consider and determine those two issues. The fact suffices for review and does not require substantive appellate proceedings to redress. It is an occasion of giving the court the chance to correct an obvious if unintended mistake. It is the prudent use of the judicial resources contemplated under Article 159 of the Constitution as well as the Oxygen provisions of the Civil Procedure Act. The applicant’s contention is based on the fact the court did not in its dealing with the matter address and dismiss the twin prayers as unmerited or indeed unproven. Had that been the case, the two issue would have been expressly addressed, thus the plaintiffs belief that the omission on the part of the court was purely inadvertent.
The respondent on his part submits that an error on the face of the record should be self- evident as it was held in the case of National Bank of Kenpa vs Ndungu Niau Civil Appeal No. 2111 011996, where the Court of Appeal stated as follows:
“….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 expansion of the law….”
The applicant recites the 13th Edition of Mulla on the Indian Code of Civil Procedure where review is discussed, it is provided as follows:
"A mere error of law is not a ground for review under this rule. It must further be an error on the face of record. The line of demarcation between an error simpliciter and an error apparent on the face of record when it is obvious and self-evident and does not require an elaborate argument to be established.
Further, the respondent relies on the case of Justice Mativo in the case of Republic vs Advocates Disciplinary Tribunal Ex arte Apollo Mboya [20191 eKLR, set out the following principles of review among others:
i. "An error which is not self-evident and which can he discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under section 80.
(ii) An erroneous order/ decision cannot be corrected in the guise of exercise of power of review
ii. A mistake or an error apparent on the face of the record means a mistake or an error which is prima face visible and does not require any detail examination.
Consequently, the respondent contends that the ground upon which this application is premised is evidently misguided. This is because the issue in dispute is one that can only be addressed by way of an appeal as it goes to the merit of the judgment. The court will need to re-evaluate and re-analyze the evidence and documents on record and reach a new finding.
The respondent cites the case of National Bank or Kenya vs Ndungu Niau (supra). the court stated as follows:
.In the instant case the matters in dispute have been fully canvassed before the learned judge who made a conscious decision on the matter in controversy and exercised his discretion... (f he has reached a wrong conclusion of the law, it could be a good ground for appeal but not review. An issue hotly contested cannot be reviewed by the same court which had adjudicated upon it.
Moreover, in the case of eKLR, the Supreme Court of Kenya held as follows:
"It is a general principle of law that a court after passing judgment, becomes functus officio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law
In light of the foregoing submissions, evidence and case law, we submit that the Applicant has not demonstrated the merits of their application and it is therefore our prayer that the same be dismissed with costs to the Respondent.
Analysis and Determination
The review of a judgment is a distinct legal remedy from an appeal, confined to specific grounds and not intended to re-examine the merits of a decision. The power to review is available only when there is a mistake or error apparent on the face of the record, the discovery of new and important matter or evidence that could not have been discovered with due diligence, or for any other sufficient reason. Review proceedings are not an appeal in disguise and must not involve a re-appraisal of the entire evidence or a challenge to how the law was applied or interpreted, as that would constitute an exercise of appellate.
For a review to succeed on the ground of an error apparent on the face of the record, the error must be glaring, self-evident, and not subject to reasonable dispute. It cannot be used to correct a mere mistake in judgment or a different interpretation of the law. The courts exercise their discretion judiciously, and the application must be made promptly.
The issue for determination is whether this application falls under the ambit of Order 45 Rule 1 of the Civil Procedure Rules for review. The court’s power to review its own Judgment is provided under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules as follows:
80. Review
Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
In the case of National Bank of Kenya v Ndungu Njau Civil Appeal No. 2111 of 1996 cited in Coretec Systems & Solutions Ltd v Digital Divide Data Kenya Ltd [2020] 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 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 expansion of the law”
In the case of Republic –v- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR the court held that:
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
v. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vi. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
vii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
This court finds that the order sought requires an elaborate analysis of the facts on record as the alleged error is not apparent on record. The application is dismissed with costs.
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Applicants Case
The applicant, Emerg Investments Limited has come to court seeking orders that this honorable court be pleased to vary and or review its judgment and decree delivered on 10th day of July 2025 to include additional award of Kshs1,988,566.00. The applicant asks for costs of the application.
The applications is based on grounds that on the 7th day of July 2025, this court delivered a judgment in favor of the Plaintiff/Applicant herein. In its judgment, the Honorable Court inadvertently did not deal with and therefore award the pleaded and proved claims in respect of costs of repair of the subject demised premises and rent arrears for the three (3) months of March, April and May of 2024 the lease, totaling Ksh342,526:00 and Ksh1,646,040:00 respectively.
The omission to address the referenced subject prayers has occasioned a severe miscarriage of justice as the Plaintiff/Applicant who has been denied the full scope of remedies on account of the proven breach of contract by the Defendant/Respondent. This Honorable Court is vested with wide discretion to review the terms of the judgment and correct any error (s) that is apparent on the face of the record in order to ensure that parties are not sent away from the seat of justice unheard.
It is in the interests of justice that the orders sought herein are granted and this Honorable Court moves to canvass/address itself to the prayers for costs of repair of the subject demised premises and rent arrears for the last three (3) months of the lease. The instant Application has been made without undue delay. The application is supported by the affidavit of Nalinkumer M Shah that reiterates the grounds of the application.
Respondents Case
Mr Allan K Mitei filed a replying affidavit in opposition to the application. He states that the application is baseless misconceived and an abuse of the process of court and that for a decision to be reviewed on the ground of error or mistake apparent on the face of record, such an error or mistake must be so obvious and self-evident that it requires no elaborate argument to be established. The judgment delivered was made in discretion after evaluation of all the documents and evidence in the court''s record.
According to the respondent, this application calls this Honorable Court to re-evaluate, re-analyze and re interpret the judgment which would amount to it sitting as an appellate court over its own decision.
He contends that this application is therefore misguided since a decision made in exercise of a court''s discretionary power cannot be said to be an error in the face of record. The Applicant has not demonstrated any exceptional grounds to warrant review of this Court''s judgment. The integrity of this Court must be protected from abuse by parties who seek to circumvent lawful decisions through unmeritorious applications. The Respondent stands to suffer prejudice should this application be allowed. In the circumstances, it is in the interest of justice that this application is dismissed with costs.
Rival Submissions
The applicants submits that the application herein is brought on account of what appears to be an unmistakable occasion of in advertent mistake or error apparent on the face of record and therefore it is merited. This court mentioned the issue of rent arrears for three months and costs of repairs only on one occasion at the point of analyzing the plaintiffs case and its subsequent submissions. There is no other mention. The applicant believes that after analysis of the evidence, and the determination that the defendant was in breach of the lease, the court only awarded the compensatory damages in respect of the breach. Somehow, and out of sheer oversight, the court did not go back to deal with other concomitant reliefs sought in the rent arrears for the specific pleaded months and repair costs which were clearly sought and addressed by the Plaintiff/Applicant in its evidence.
The applicant contends in his submissions that it is on that token that he is of the view that the said judgment is attended by error apparent on the face of record, being that the Honorable Court inadvertently failed to consider and determine those two issues. The fact suffices for review and does not require substantive appellate proceedings to redress. It is an occasion of giving the court the chance to correct an obvious if unintended mistake. It is the prudent use of the judicial resources contemplated under Article 159 of the Constitution as well as the Oxygen provisions of the Civil Procedure Act. The applicant’s contention is based on the fact the court did not in its dealing with the matter address and dismiss the twin prayers as unmerited or indeed unproven. Had that been the case, the two issue would have been expressly addressed, thus the plaintiffs belief that the omission on the part of the court was purely inadvertent.
The respondent on his part submits that an error on the face of the record should be self- evident as it was held in the case of National Bank of Kenpa vs Ndungu Niau Civil Appeal No. 2111 011996, where the Court of Appeal stated as follows:
“….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 expansion of the law….”
The applicant recites the 13th Edition of Mulla on the Indian Code of Civil Procedure where review is discussed, it is provided as follows:
"A mere error of law is not a ground for review under this rule. It must further be an error on the face of record. The line of demarcation between an error simpliciter and an error apparent on the face of record when it is obvious and self-evident and does not require an elaborate argument to be established.
Further, the respondent relies on the case of Justice Mativo in the case of Republic vs Advocates Disciplinary Tribunal Ex arte Apollo Mboya [20191 eKLR, set out the following principles of review among others:
i. "An error which is not self-evident and which can he discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under section 80.
(ii) An erroneous order/ decision cannot be corrected in the guise of exercise of power of review
ii. A mistake or an error apparent on the face of the record means a mistake or an error which is prima face visible and does not require any detail examination.
Consequently, the respondent contends that the ground upon which this application is premised is evidently misguided. This is because the issue in dispute is one that can only be addressed by way of an appeal as it goes to the merit of the judgment. The court will need to re-evaluate and re-analyze the evidence and documents on record and reach a new finding.
The respondent cites the case of National Bank or Kenya vs Ndungu Niau (supra). the court stated as follows:
.In the instant case the matters in dispute have been fully canvassed before the learned judge who made a conscious decision on the matter in controversy and exercised his discretion... (f he has reached a wrong conclusion of the law, it could be a good ground for appeal but not review. An issue hotly contested cannot be reviewed by the same court which had adjudicated upon it.
Moreover, in the case of eKLR, the Supreme Court of Kenya held as follows:
"It is a general principle of law that a court after passing judgment, becomes functus officio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law
In light of the foregoing submissions, evidence and case law, we submit that the Applicant has not demonstrated the merits of their application and it is therefore our prayer that the same be dismissed with costs to the Respondent.
Analysis and Determination
The review of a judgment is a distinct legal remedy from an appeal, confined to specific grounds and not intended to re-examine the merits of a decision. The power to review is available only when there is a mistake or error apparent on the face of the record, the discovery of new and important matter or evidence that could not have been discovered with due diligence, or for any other sufficient reason. Review proceedings are not an appeal in disguise and must not involve a re-appraisal of the entire evidence or a challenge to how the law was applied or interpreted, as that would constitute an exercise of appellate.
For a review to succeed on the ground of an error apparent on the face of the record, the error must be glaring, self-evident, and not subject to reasonable dispute. It cannot be used to correct a mere mistake in judgment or a different interpretation of the law. The courts exercise their discretion judiciously, and the application must be made promptly.
The issue for determination is whether this application falls under the ambit of Order 45 Rule 1 of the Civil Procedure Rules for review. The court’s power to review its own Judgment is provided under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules as follows:
80. Review
Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
In the case of National Bank of Kenya v Ndungu Njau Civil Appeal No. 2111 of 1996 cited in Coretec Systems & Solutions Ltd v Digital Divide Data Kenya Ltd [2020] 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 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 expansion of the law”
In the case of Republic –v- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR the court held that:
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
v. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vi. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
vii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
This court finds that the order sought requires an elaborate analysis of the facts on record as the alleged error is not apparent on record. The application is dismissed with costs.
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