' Introduction
1. This Ruling determines the Applicant’s Notice of Motion dated 4th July 2025, brought under Order 9 Rule 9, Order 45 of the Civil Procedure Rules, Sections 1A, 1B, and 3A of the Civil Procedure Act, Article 50 and 159 of the Constitution, and all enabling provisions of the law. The application seeks: -
i. That the firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators to come on record for the Applicant in place of Nyagah B. Kithinji & Co. Advocates.
ii. Review, variation, and setting aside of this Court’s Ruling delivered on 14th June 2023;
iii. Leave to the Applicant to file supplementary submissions on account of the Supreme Court decision Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 1 (KLR) (18th December 2020) (Judgment) and Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) (6 December 2019) (Judgment).
iv. That the Applicant be granted an opportunity to highlight its submissions afresh before the Court can proceed to make a determination on its application dated 9th October, 2019.
v. Any other orders that meet the ends of justice
vi. Costs of the Application.
2. The Application is based on the grounds on the face of the application and is supported by the affidavit sworn on the same date by Ramji Devji Varsan, a director of the Applicant.
Brief Background
3. The dispute between the parties has its roots from a Construction Agreement dated 6th February 2007, relating to the development of maisonettes on LR No. 209/11885/2 in South C, Nairobi (“the JBC Project”) for a contract sum of Kshs. 575,000,000/=. The Respondent was the employer/developer, while the Applicant was contracted as the main contractor.
4. A dispute arose regarding alleged outstanding payments, variation claims, time extensions, and assessment of works. Pursuant to Clause 45 of the Agreement, the dispute was referred to arbitration before Architect Julius Muthui F. Mutunga, an agreed sole arbitrator.
5. Upon full hearings, site inspections, expert evidence, and document examination, the arbitrator rendered a final award on 11th June 2019.
6. The Applicant thereafter filed a Notice of Motion dated 9th October 2019 seeking to set aside the award under Section 35 of the Arbitration Act, arguing among other things:
i. The award was irrational and contained computational errors;
ii. The arbitrator misapplied contractual provisions;
iii. The award allegedly violated public policy.
7. After full ventilation of submissions, this Court (Hon. Lady Justice D. Chepkwony) rejected the application on 14th June 2023, finding that the application did not meet the threshold for setting aside an arbitral award as prescribed under section 35 of the Arbitration Act.
8. It is this ruling that the Applicant now seeks to review, principally on grounds of denial of a fair hearing and alleged injustice in the treatment of certified sums amounting to Kshs. 60,755,204.
9. The Respondent opposed the application through a detailed Replying Affidavit sworn on 15th July 2025 by Henry Macharia, Advocate for the Respondent, contending that the application does not meet the threshold for review within the meaning of Order 45 of the Civil Procedure Rules and that this Court lacks the jurisdiction to re-evaluate the decision of the Arbitral Tribunal.
10. The application was canvassed by written submission. The Applicant, through the law firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators, filed its submissions dated 3rd July 2025, whilst the Respondent’s Counsel, Robson Harris Advocates, filed submissions dated 28th August 2025 on behalf of the Respondent.
Applicant’s Case
11. The Applicant submitted that, in view of the fact that a ruling finally determining this matter having been rendered by the Court, it is necessary under Order 9 rule 9 of the Civil Procedure Rules that leave be granted to the firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators to come on record for the Applicant in place of Nyagah B. Kithinji & Co. Advocates, who were previously on record.
12. The Applicant asserted its application is procedurally sound since Order 9 Rule 10 of the Civil Procedure Rules allows for the application for change of advocates to be combined with other prayers (as is in the present case), provided the issue of representation is first determined.
13. On review, it was submitted on behalf of the Applicant that the ruling of 14th June 2023 contains an error apparent on the face of the record, specifically that the Court stated that both parties had fully highlighted their submissions, whereas the Applicant maintains that its counsel had not been accorded adequate opportunity to highlight arguments. The Applicant argued that this amounts to procedural unfairness contrary to Article 50(1) of the Constitution, asserting that “highlighting of submissions is not a cosmetic formality, but an important procedural step that allows a party to emphasize and clarify key aspects of their legal arguments.” The Applicant cited, among others, the case National Bank of Kenya v Ndungu Njau [1997] eKLR in support of the argument.
14. The Applicant stressed because of the discovery of new and important matter, namely the Supreme Court’s decisions in: Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR; and Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, where it was emphasized that courts must intervene to prevent injustice where public policy or fairness is threatened. The Applicant maintained that the refusal by the arbitral tribunal to allow a claim for certified and undisputed sums of Kshs. 60,755,204/- amounted to unjust enrichment on the part of the Respondent and therefore offended the public policy of Kenya, hence the need for a review order.
15. It was submitted that, in line with the above decisions by the Supreme Court, the High Court under Section 35 of the Arbitration Act retains inherent jurisdiction to correct injustice arising from arbitral awards that offend public policy, are irrational, or constitute manifest miscarriage of justice. Citing the decision by Chief Justice (Emeritus) Mutunga in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others [20131 eKLR, the Applicant submitted that there is no injustice that the Constitution is powerless to redress.
16. The Applicant therefore urged the Court to invoke the overriding objective under Sections 1A and 1B of the Civil Procedure Act, as well as Article 159(2)(d), and allow the matter to be reopened, enabling the Court to consider supplementary submissions and apply the newly emerging jurisprudence.
Respondents Submissions
17. The Respondent, while not opposing the prayer for a change of advocates, argued that even if leave were granted, this would not cure the fatal defects in the application for review.
18. The Respondent submitted that the Applicant has not met any of the narrow and exceptional grounds for review established under Order 45 Rule 1. Counsel also relied on, among others, the decision by the Court of Appeal in the case of National Bank of Kenya v Ndungu Njau (supra).
19. The Respondent asserted that the Applicant’s claim that its counsel was not heard is factually incorrect and not borne by the record. According to the Respondent, the record shows that directions were issued on 25th April 2022, and that highlighting was done on 14th November 2022 in the presence of Counsel for both parties. Further that Counsel for both parties were in court on 28th March 2023 when the ruling was to be delivered, but deferred to a future date.
20. The Respondent argued that the application is in truth an attempt to appeal the ruling on its merits under the guise of review, contrary to the principle of finality emphasized in:
21. Regarding the Applicant’s argument on the need to set aside the arbitral award for disallowing its claim for Kshs. 60,755,204.00 on the basis of being contrary to the public policy of Kenya, the Respondent, relying on, among others, the case of Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, submitted that it is not the mandate of the High Court to re-evaluate the decision of an arbitral tribunal.
22. The Respondent therefore urged the Court to dismiss the application as frivolous, vexatious, and an abuse of the Court process.
Analysis and Determination
23. Having duly considered the application, the response thereto, the applicable law, and the parties’ respective submissions, I find the following issues arising for determination:
i. Whether leave should be granted for the change of Advocate
ii. Whether the application has met the threshold for review under Order 45 of the Civil Procedure Rules.
Whether leave should be granted for the change of Advocate
24. It is trite law that under any change of advocates after delivery of judgment must be by way of leave of Court or consent filed between the outgoing and incoming advocate. Order 9 Rules 9 and 10 of the Civil Procedure Rules, 2010 under which the application is premised provide that:
“Change to be effected by order of court or consent of parties [Order 9, rule 9]
When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—
(a)upon an application with notice to all the parties; or
(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.
Procedure [Order 9, rule 10]
An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”
25. In the present case, Counsel for the Applicant submitted that the change of advocates is necessitated by the Applicant’s dissatisfaction with the handling of the previous application and the need for fresh strategic direction.
26. The Respondent does not oppose the change and agrees that Order 9 Rule 9 is mandatory and must be complied with strictly where a party intends to change Advocates after a judgment or ruling has been delivered. However, counsel argued that even if leave were granted, this would not cure the fatal defects in the application for review.
27. Having considered the prayer by the Applicant and taking into account that the Respondent is not opposed to the same, the Court is satisfied that the application has been properly made and is deserved. The Applicant is entitled to legal representation of its choice.
28. Accordingly, the Court grants leave to the firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators to come on record for the Applicant in place of Nyagah B. Kithinji & Co. Advocates.
Whether the Application for Review is merited
29. The prayer for review is premised on Order 45 Rule 1 of the Civil Procedure Rules, which provides as follows:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
30. Further Order 45 rule 3 provides that:
(1) Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.
(2) Where the court is of opinion that the application for review should be granted, it shall grant the same:
Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.
31. From the above, it is clear that a review under the Order 45 Rule 1 provides that review may be sought on three grounds:
i. Discovery of new and important matter or evidence not within the applicant’s knowledge despite due diligence;
ii. Mistake or error apparent on the face of the record;
iii. Any other sufficient reason. The application must also be brought without unreasonable delay
32. The Court of Appeal in National Bank of Kenya Limited v Njau [1997] KECA 71 (KLR) observed 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 Court clarified that “the error or omission must be self-evident and should not require an elaborate argument to be established.
33. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR), the Court (Mativo J – as he then was) culled out the following principles from a number of authorities:
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.
vi. 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.
vii. 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.
viii. 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.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.
x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.
34. In the present case, the Applicant argues that it was denied the opportunity to highlight submissions, while the Respondent was allowed to do so. It submits that this constituted unequal treatment and a violation of Article 50(1) of the Constitution. Reliance was placed on Synergy Industrial Credit Ltd v Cape Holdings Ltd [2020] KECA 223, Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad (Petition No. 7 of 2018), and Steel & Morris v United Kingdom [2005] ECHR 103, which emphasize the importance of procedural fairness and equality of arms.
35. The Respondent, on the other hand, contends that the record demonstrates both parties filed submissions and that the Court in its ruling expressly relied on those submissions. It argues that the alleged denial of highlighting is not borne out by the record, and even if arguable, it would amount to a ground of appeal rather than review. Reliance was placed on National Bank of Kenya Ltd v Ndungu Njau (supra), which held that misconstruing the law or reaching an erroneous conclusion is a matter for appeal, not review.
36. Upon scrutiny, I note from the record that both parties filed comprehensive written submissions, which formed the basis of the Court’s ruling of 14th June 2023. The ruling itself makes reference to the submissions of both sides. The Applicant has not demonstrated that its submissions were ignored or excluded. The complaint, therefore, does not disclose an error apparent on the face of the record.
37. As the Court of Appeal observed in National Bank of Kenya Ltd v Ndungu Njau (supra), an error apparent must be self-evident and not one requiring elaborate argument. The alleged denial of highlighting is not self-evident from the record and falls outside the narrow confines of review.
38. In any event, concerning the Applicant’s argument that the arbitral award disallowed certified sums amounting to Kshs. 60,755,204, which offends public policy, and therefore needs to be revisited by this court by allowing the Applicant to resubmit on the issue, I agree with the Respondent’s submissions that Section 35 of the Arbitration Act does not permit this Court to re-evaluate the correctness of the Arbitrator’s findings.
39. The Supreme Court in Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR emphasized that courts must respect the finality of arbitral awards and avoid sitting on appeal over arbitral decisions. Further, public policy, as defined in Christ for All Nations v Apollo Insurance Co. Ltd [2002] 2 EA 366, is a narrow ground implicating national interest, justice, or morality. The dispute herein is a private contractual matter between the parties and does not rise to that threshold.
40. Further, the Court associates with the view expressed by Mativo J. in the Apollo Mboya case (supra) that no review can be ordered under Section 80 of the Civil Procedure Act and Order 45 of the Rules on the basis of a subsequent decision or judgment of a coordinate or larger Bench of the tribunal or of a superior court. In this case, the Applicant based the need for review on the Supreme Court’s decisions in: Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR; and Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, where it was emphasized that courts must intervene to prevent injustice where public policy or fairness is threatened. This obviously cannot be a ground for review under Order 45 Rule 1 of the Civil Procedure Rules.
41. In light of the foregoing, I find and hold that the application for review is not merited and is hereby dismissed.
42. On costs, Section 27 of the Civil Procedure Act vests discretion in the Court. Costs ordinarily follow the event. Given the dismissal of the application, costs shall be borne by the Applicant.
43. Accordingly, the Notice of Motion dated 4th July 2024 is hereby dismissed with costs to the Respondent.
44. It is so ordered.
SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Okwach………………...for the Appellant
Chebon………….…..... for the Respondent
'
1. This Ruling determines the Applicant’s Notice of Motion dated 4th July 2025, brought under Order 9 Rule 9, Order 45 of the Civil Procedure Rules, Sections 1A, 1B, and 3A of the Civil Procedure Act, Article 50 and 159 of the Constitution, and all enabling provisions of the law. The application seeks: -
i. That the firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators to come on record for the Applicant in place of Nyagah B. Kithinji & Co. Advocates.
ii. Review, variation, and setting aside of this Court’s Ruling delivered on 14th June 2023;
iii. Leave to the Applicant to file supplementary submissions on account of the Supreme Court decision Geo Chem Middle East v Kenya Bureau of Standards (Petition 47 of 2019) [2020] KESC 1 (KLR) (18th December 2020) (Judgment) and Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) (6 December 2019) (Judgment).
iv. That the Applicant be granted an opportunity to highlight its submissions afresh before the Court can proceed to make a determination on its application dated 9th October, 2019.
v. Any other orders that meet the ends of justice
vi. Costs of the Application.
2. The Application is based on the grounds on the face of the application and is supported by the affidavit sworn on the same date by Ramji Devji Varsan, a director of the Applicant.
Brief Background
3. The dispute between the parties has its roots from a Construction Agreement dated 6th February 2007, relating to the development of maisonettes on LR No. 209/11885/2 in South C, Nairobi (“the JBC Project”) for a contract sum of Kshs. 575,000,000/=. The Respondent was the employer/developer, while the Applicant was contracted as the main contractor.
4. A dispute arose regarding alleged outstanding payments, variation claims, time extensions, and assessment of works. Pursuant to Clause 45 of the Agreement, the dispute was referred to arbitration before Architect Julius Muthui F. Mutunga, an agreed sole arbitrator.
5. Upon full hearings, site inspections, expert evidence, and document examination, the arbitrator rendered a final award on 11th June 2019.
6. The Applicant thereafter filed a Notice of Motion dated 9th October 2019 seeking to set aside the award under Section 35 of the Arbitration Act, arguing among other things:
i. The award was irrational and contained computational errors;
ii. The arbitrator misapplied contractual provisions;
iii. The award allegedly violated public policy.
7. After full ventilation of submissions, this Court (Hon. Lady Justice D. Chepkwony) rejected the application on 14th June 2023, finding that the application did not meet the threshold for setting aside an arbitral award as prescribed under section 35 of the Arbitration Act.
8. It is this ruling that the Applicant now seeks to review, principally on grounds of denial of a fair hearing and alleged injustice in the treatment of certified sums amounting to Kshs. 60,755,204.
9. The Respondent opposed the application through a detailed Replying Affidavit sworn on 15th July 2025 by Henry Macharia, Advocate for the Respondent, contending that the application does not meet the threshold for review within the meaning of Order 45 of the Civil Procedure Rules and that this Court lacks the jurisdiction to re-evaluate the decision of the Arbitral Tribunal.
10. The application was canvassed by written submission. The Applicant, through the law firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators, filed its submissions dated 3rd July 2025, whilst the Respondent’s Counsel, Robson Harris Advocates, filed submissions dated 28th August 2025 on behalf of the Respondent.
Applicant’s Case
11. The Applicant submitted that, in view of the fact that a ruling finally determining this matter having been rendered by the Court, it is necessary under Order 9 rule 9 of the Civil Procedure Rules that leave be granted to the firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators to come on record for the Applicant in place of Nyagah B. Kithinji & Co. Advocates, who were previously on record.
12. The Applicant asserted its application is procedurally sound since Order 9 Rule 10 of the Civil Procedure Rules allows for the application for change of advocates to be combined with other prayers (as is in the present case), provided the issue of representation is first determined.
13. On review, it was submitted on behalf of the Applicant that the ruling of 14th June 2023 contains an error apparent on the face of the record, specifically that the Court stated that both parties had fully highlighted their submissions, whereas the Applicant maintains that its counsel had not been accorded adequate opportunity to highlight arguments. The Applicant argued that this amounts to procedural unfairness contrary to Article 50(1) of the Constitution, asserting that “highlighting of submissions is not a cosmetic formality, but an important procedural step that allows a party to emphasize and clarify key aspects of their legal arguments.” The Applicant cited, among others, the case National Bank of Kenya v Ndungu Njau [1997] eKLR in support of the argument.
14. The Applicant stressed because of the discovery of new and important matter, namely the Supreme Court’s decisions in: Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR; and Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, where it was emphasized that courts must intervene to prevent injustice where public policy or fairness is threatened. The Applicant maintained that the refusal by the arbitral tribunal to allow a claim for certified and undisputed sums of Kshs. 60,755,204/- amounted to unjust enrichment on the part of the Respondent and therefore offended the public policy of Kenya, hence the need for a review order.
15. It was submitted that, in line with the above decisions by the Supreme Court, the High Court under Section 35 of the Arbitration Act retains inherent jurisdiction to correct injustice arising from arbitral awards that offend public policy, are irrational, or constitute manifest miscarriage of justice. Citing the decision by Chief Justice (Emeritus) Mutunga in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others [20131 eKLR, the Applicant submitted that there is no injustice that the Constitution is powerless to redress.
16. The Applicant therefore urged the Court to invoke the overriding objective under Sections 1A and 1B of the Civil Procedure Act, as well as Article 159(2)(d), and allow the matter to be reopened, enabling the Court to consider supplementary submissions and apply the newly emerging jurisprudence.
Respondents Submissions
17. The Respondent, while not opposing the prayer for a change of advocates, argued that even if leave were granted, this would not cure the fatal defects in the application for review.
18. The Respondent submitted that the Applicant has not met any of the narrow and exceptional grounds for review established under Order 45 Rule 1. Counsel also relied on, among others, the decision by the Court of Appeal in the case of National Bank of Kenya v Ndungu Njau (supra).
19. The Respondent asserted that the Applicant’s claim that its counsel was not heard is factually incorrect and not borne by the record. According to the Respondent, the record shows that directions were issued on 25th April 2022, and that highlighting was done on 14th November 2022 in the presence of Counsel for both parties. Further that Counsel for both parties were in court on 28th March 2023 when the ruling was to be delivered, but deferred to a future date.
20. The Respondent argued that the application is in truth an attempt to appeal the ruling on its merits under the guise of review, contrary to the principle of finality emphasized in:
21. Regarding the Applicant’s argument on the need to set aside the arbitral award for disallowing its claim for Kshs. 60,755,204.00 on the basis of being contrary to the public policy of Kenya, the Respondent, relying on, among others, the case of Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, submitted that it is not the mandate of the High Court to re-evaluate the decision of an arbitral tribunal.
22. The Respondent therefore urged the Court to dismiss the application as frivolous, vexatious, and an abuse of the Court process.
Analysis and Determination
23. Having duly considered the application, the response thereto, the applicable law, and the parties’ respective submissions, I find the following issues arising for determination:
i. Whether leave should be granted for the change of Advocate
ii. Whether the application has met the threshold for review under Order 45 of the Civil Procedure Rules.
Whether leave should be granted for the change of Advocate
24. It is trite law that under any change of advocates after delivery of judgment must be by way of leave of Court or consent filed between the outgoing and incoming advocate. Order 9 Rules 9 and 10 of the Civil Procedure Rules, 2010 under which the application is premised provide that:
“Change to be effected by order of court or consent of parties [Order 9, rule 9]
When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—
(a)upon an application with notice to all the parties; or
(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.
Procedure [Order 9, rule 10]
An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”
25. In the present case, Counsel for the Applicant submitted that the change of advocates is necessitated by the Applicant’s dissatisfaction with the handling of the previous application and the need for fresh strategic direction.
26. The Respondent does not oppose the change and agrees that Order 9 Rule 9 is mandatory and must be complied with strictly where a party intends to change Advocates after a judgment or ruling has been delivered. However, counsel argued that even if leave were granted, this would not cure the fatal defects in the application for review.
27. Having considered the prayer by the Applicant and taking into account that the Respondent is not opposed to the same, the Court is satisfied that the application has been properly made and is deserved. The Applicant is entitled to legal representation of its choice.
28. Accordingly, the Court grants leave to the firm of Dr. Mutubwa Law Advocates, Arbitrators and Mediators to come on record for the Applicant in place of Nyagah B. Kithinji & Co. Advocates.
Whether the Application for Review is merited
29. The prayer for review is premised on Order 45 Rule 1 of the Civil Procedure Rules, which provides as follows:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
30. Further Order 45 rule 3 provides that:
(1) Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.
(2) Where the court is of opinion that the application for review should be granted, it shall grant the same:
Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.
31. From the above, it is clear that a review under the Order 45 Rule 1 provides that review may be sought on three grounds:
i. Discovery of new and important matter or evidence not within the applicant’s knowledge despite due diligence;
ii. Mistake or error apparent on the face of the record;
iii. Any other sufficient reason. The application must also be brought without unreasonable delay
32. The Court of Appeal in National Bank of Kenya Limited v Njau [1997] KECA 71 (KLR) observed 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 Court clarified that “the error or omission must be self-evident and should not require an elaborate argument to be established.
33. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR), the Court (Mativo J – as he then was) culled out the following principles from a number of authorities:
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.
vi. 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.
vii. 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.
viii. 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.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.
x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.
34. In the present case, the Applicant argues that it was denied the opportunity to highlight submissions, while the Respondent was allowed to do so. It submits that this constituted unequal treatment and a violation of Article 50(1) of the Constitution. Reliance was placed on Synergy Industrial Credit Ltd v Cape Holdings Ltd [2020] KECA 223, Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad (Petition No. 7 of 2018), and Steel & Morris v United Kingdom [2005] ECHR 103, which emphasize the importance of procedural fairness and equality of arms.
35. The Respondent, on the other hand, contends that the record demonstrates both parties filed submissions and that the Court in its ruling expressly relied on those submissions. It argues that the alleged denial of highlighting is not borne out by the record, and even if arguable, it would amount to a ground of appeal rather than review. Reliance was placed on National Bank of Kenya Ltd v Ndungu Njau (supra), which held that misconstruing the law or reaching an erroneous conclusion is a matter for appeal, not review.
36. Upon scrutiny, I note from the record that both parties filed comprehensive written submissions, which formed the basis of the Court’s ruling of 14th June 2023. The ruling itself makes reference to the submissions of both sides. The Applicant has not demonstrated that its submissions were ignored or excluded. The complaint, therefore, does not disclose an error apparent on the face of the record.
37. As the Court of Appeal observed in National Bank of Kenya Ltd v Ndungu Njau (supra), an error apparent must be self-evident and not one requiring elaborate argument. The alleged denial of highlighting is not self-evident from the record and falls outside the narrow confines of review.
38. In any event, concerning the Applicant’s argument that the arbitral award disallowed certified sums amounting to Kshs. 60,755,204, which offends public policy, and therefore needs to be revisited by this court by allowing the Applicant to resubmit on the issue, I agree with the Respondent’s submissions that Section 35 of the Arbitration Act does not permit this Court to re-evaluate the correctness of the Arbitrator’s findings.
39. The Supreme Court in Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR emphasized that courts must respect the finality of arbitral awards and avoid sitting on appeal over arbitral decisions. Further, public policy, as defined in Christ for All Nations v Apollo Insurance Co. Ltd [2002] 2 EA 366, is a narrow ground implicating national interest, justice, or morality. The dispute herein is a private contractual matter between the parties and does not rise to that threshold.
40. Further, the Court associates with the view expressed by Mativo J. in the Apollo Mboya case (supra) that no review can be ordered under Section 80 of the Civil Procedure Act and Order 45 of the Rules on the basis of a subsequent decision or judgment of a coordinate or larger Bench of the tribunal or of a superior court. In this case, the Applicant based the need for review on the Supreme Court’s decisions in: Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR; and Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, where it was emphasized that courts must intervene to prevent injustice where public policy or fairness is threatened. This obviously cannot be a ground for review under Order 45 Rule 1 of the Civil Procedure Rules.
41. In light of the foregoing, I find and hold that the application for review is not merited and is hereby dismissed.
42. On costs, Section 27 of the Civil Procedure Act vests discretion in the Court. Costs ordinarily follow the event. Given the dismissal of the application, costs shall be borne by the Applicant.
43. Accordingly, the Notice of Motion dated 4th July 2024 is hereby dismissed with costs to the Respondent.
44. It is so ordered.
SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Okwach………………...for the Appellant
Chebon………….…..... for the Respondent
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