1. The Court is called upon to determine the Applicant’s Notice of Motion dated 24th February 2025, brought under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, and the inherent powers of the Court under Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicant seeks the review and setting aside of this Court’s directions issued on 18th February 2025, which required parties to file written submissions in respect of the main appeal.
2. The basis of the application is that by the time the Court issued the said directions, the appeal had already been resolved through a consent agreement, which had been duly adopted as a judgment of the Court. It is the Applicant’s case that the Court was inadvertently not apprised of this position, due to an honest mistake by counsel appearing at the time. The Applicant submits that this oversight necessitates the present application for review.
3. The application is unopposed. The Respondent, despite having been served, did not file any response or grounds of opposition.
Analysis and Determination
4. The Court has considered the application, the supporting affidavit, and the Applicant’s submissions. The only issue that arises for determination is whether the Applicant has satisfied the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
5. Order 45 Rule 1 of the Civil Procedure Rules provides for review on the following grounds: Discovery of new and important matter or evidence not within the applicant’s knowledge at the time the order was made; Error apparent on the face of the record; or any other sufficient reason.
6. The Court of Appeal in Anthony Gachara Ayub v Francis Mahinda Thinwa [2014] KECA 623 (KLR) reaffirmed the principles established in Muyodi v Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, holding that an order for review may be granted where among others, it is demonstrated that there was some mistake or error apparent on the face of the record, provided that the application is made without unreasonable delay. The Court stated that:-
“For an application for review under Order XLV, Rule 1 to succeed, the applicant was obliged to show that there had been discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at that time. Alternatively, he had to show that there was some mistake or error apparent on the face of the record or some other sufficient reason. In addition, the application was to be made without unreasonable delay”
7. In the present case, the Applicant has demonstrated that at the time the Court issued directions on 18th February 2025, there was already a consent judgment on record, conclusively disposing of the appeal. The record reflects that the application for review was filed on 24th February 2025, within six (6) days, which constitutes prompt action and satisfies the requirement of timeliness.
8. The failure to inform the Court of the consent judgment was, as the Applicant submits, a mistake of counsel. Courts have long held that bona fide mistakes of counsel may constitute “sufficient reason” under Order 45 Rule 1 (see Shah v Mbogo [1967] EA 116). Moreover, it would serve no useful purpose to continue with proceedings in an appeal that has already been concluded by consent.
9. The Court is satisfied that the appeal had already been determined by a Deed of Acknowledgment and Settlement of Debt dated 15th June 2024, which was filed in this Court on 14th October 2024. The Deed of Settlement is produced as annex “lmn1” in the affidavit of Lewis Mwangi, sworn on 24th February in support of the application.
10. Additionally, evidence in the further affidavit sworn by Lewis Mwangi on 18th March 2025 (Annex “LM-1” and “LM-2”) demonstrates that the Applicant has been making payments to the Respondent under the Deed of Settlement.
11. In light of the foregoing, the Court finds merit in the application dated 24th February 2025. The Applicant has satisfied the legal threshold for review and is entitled to the reliefs sought.
Final Orders
12. Accordingly, the Court makes the following orders:-
a) The directions issued by this Court on 18th February 2025 requiring parties to file submissions in the main appeal are hereby reviewed and set aside;
b) The Appeal is hereby marked as settled in terms of the Deed of Acknowledgment and Settlement of Debt dated 15th June 2024, filed in this Court on 14th October 2024.
c) There shall be no order as to costs.
d) This file is closed
13. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
10TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Mwangi Mburu……………….............for the Applicant
Buluma h/b brief for Kabugu…………for the Respond ent
2. The basis of the application is that by the time the Court issued the said directions, the appeal had already been resolved through a consent agreement, which had been duly adopted as a judgment of the Court. It is the Applicant’s case that the Court was inadvertently not apprised of this position, due to an honest mistake by counsel appearing at the time. The Applicant submits that this oversight necessitates the present application for review.
3. The application is unopposed. The Respondent, despite having been served, did not file any response or grounds of opposition.
Analysis and Determination
4. The Court has considered the application, the supporting affidavit, and the Applicant’s submissions. The only issue that arises for determination is whether the Applicant has satisfied the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
5. Order 45 Rule 1 of the Civil Procedure Rules provides for review on the following grounds: Discovery of new and important matter or evidence not within the applicant’s knowledge at the time the order was made; Error apparent on the face of the record; or any other sufficient reason.
6. The Court of Appeal in Anthony Gachara Ayub v Francis Mahinda Thinwa [2014] KECA 623 (KLR) reaffirmed the principles established in Muyodi v Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, holding that an order for review may be granted where among others, it is demonstrated that there was some mistake or error apparent on the face of the record, provided that the application is made without unreasonable delay. The Court stated that:-
“For an application for review under Order XLV, Rule 1 to succeed, the applicant was obliged to show that there had been discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at that time. Alternatively, he had to show that there was some mistake or error apparent on the face of the record or some other sufficient reason. In addition, the application was to be made without unreasonable delay”
7. In the present case, the Applicant has demonstrated that at the time the Court issued directions on 18th February 2025, there was already a consent judgment on record, conclusively disposing of the appeal. The record reflects that the application for review was filed on 24th February 2025, within six (6) days, which constitutes prompt action and satisfies the requirement of timeliness.
8. The failure to inform the Court of the consent judgment was, as the Applicant submits, a mistake of counsel. Courts have long held that bona fide mistakes of counsel may constitute “sufficient reason” under Order 45 Rule 1 (see Shah v Mbogo [1967] EA 116). Moreover, it would serve no useful purpose to continue with proceedings in an appeal that has already been concluded by consent.
9. The Court is satisfied that the appeal had already been determined by a Deed of Acknowledgment and Settlement of Debt dated 15th June 2024, which was filed in this Court on 14th October 2024. The Deed of Settlement is produced as annex “lmn1” in the affidavit of Lewis Mwangi, sworn on 24th February in support of the application.
10. Additionally, evidence in the further affidavit sworn by Lewis Mwangi on 18th March 2025 (Annex “LM-1” and “LM-2”) demonstrates that the Applicant has been making payments to the Respondent under the Deed of Settlement.
11. In light of the foregoing, the Court finds merit in the application dated 24th February 2025. The Applicant has satisfied the legal threshold for review and is entitled to the reliefs sought.
Final Orders
12. Accordingly, the Court makes the following orders:-
a) The directions issued by this Court on 18th February 2025 requiring parties to file submissions in the main appeal are hereby reviewed and set aside;
b) The Appeal is hereby marked as settled in terms of the Deed of Acknowledgment and Settlement of Debt dated 15th June 2024, filed in this Court on 14th October 2024.
c) There shall be no order as to costs.
d) This file is closed
13. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
10TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Mwangi Mburu……………….............for the Applicant
Buluma h/b brief for Kabugu…………for the Respond ent